| Mr. Carl W. S. Chun | Director | |
| Mr. Hubert S. Shaw, Jr. | Analyst |
| Mr. Arthur A. Omartian | Chairperson | |
| Mr. Roger W. Able | Member | |
| Ms. Karen Y. Fletcher | Member |
2. The applicant requests that the Article 15 administered to him on 4 June 1998 be removed from his records. He also requests that the DA Form 67-8 (Officer Evaluation Report (OER)) covering his service from 6 December 1997 through 10 June 1998 [hereafter identified as the contested OER] be completely removed from his records.
3. The applicant states essentially that the Article 15 should be removed because he was denied due process and appellate review. He states essentially the contested OER should be removed because the improper Article 15 forms the basis for the adverse OER.
4. In a five-page memorandum, dated 1 June 2001, to the Army Board for Correction of Military Records (ABCMR), the applicant stated his requests for relief and provided background information and his contentions. Attached to this memorandum in support of his application are approximately 160 pages of documents at Tabs A through H.
5. In support of his application, the applicant provided:
At TAB A, a copy of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), signed by the applicant on 4 June 1998.
At TAB B, a copy of the DA Form 67-8 (U.S. Army Officer Evaluation Report) covering the applicant’s duties from 6 December 1997 through 10 June 1998.
At TAB C, a copy of an 8 June 1998 memorandum from the applicant to the Commanding General of V Corps appealing his Article 15; a 4 June 1998 Memorandum for Record prepared by the applicant, subject: Procedural violation during Article 15 hearing; an 8 June 1998 memorandum from the applicant’s defense counsel to the Commanding General of V Corps regarding legal errors in the Article 15; a 4 June 1998 statement from an Army staff sergeant [identified hereafter as SSG DAH] who was to appear as a witness for the applicant during the Article 15 hearing; a copy of the Proceedings (AC97-06802) of the Army Board for Correction of Military Records (ABCMR), dated 28 August 1997, with a legal advisory opinion from the Total Army Personnel Command Staff Judge Advocate addressed to the Special Review Board; a copy of a 4 June 1998 Memorandum for Record entitled Rebuttal to Article 15 Allegations prepared by the applicant; a sworn statement from SSG DAH; a handwritten undated statement from an unidentified person, a second handwritten undated statement from an unidentified person; a sworn statement by a private first class [hereafter identified as PFC SMT]; a 3 June 1998 letter of character reference from the Superintendent of the Virginia Military Institute to the Commanding General of the National Support Element (NSE) of Operation Joint Guard; a 21 April 1998 letter of support from a Hungarian colonel [hereafter identified as Hungarian COL ZP]; a translation of a 29 April 1998 letter of support from the Mayor of Taszar, Hungary; a 26 May 1998 character reference letter from the chaplain of the NSE of Operation Joint Guard; an 11 February 1998 letter from a lieutenant colonel in the Pennsylvania Army National Guard (PA ARNG) [hereafter identified as LTC PRH] to the applicant; an OER covering the applicant’s duties as assistant S-3 [operations officer] of the 1st Squadron of the 104th Cavalry (PA ARNG) from 27 February 1994 through 7 September 1994; a 1 June 1998 character reference letter from the Civil Military Cooperation Officer [an Army major hereafter identified as MAJ CJW] of the NSE of Operation Joint Guard; a 30 May 1998 letter of support by a captain in the U.S. Army Reserve (USAR) and co-worker in Hungary [hereafter identified as CPT DRD]; a 3 June 1998 letter of support from the Hungarian woman [hereafter identified as Ms. EB] with whom the applicant states he “was having a relationship”; and a letter of support from the applicant’s mother.
At TAB D, documents provided by MAJ CJW to the investigating officer appointed by the brigadier general in command of the 353rd Civil Affairs Command to inquire into the relationship between COL FD and MAJ SD during Rotation 5 in Taszar, Hungary.
At TAB E, a 5 November 2000 memorandum awarding the applicant the Army Reserve Components Achievement Medal; copies of four OER’s; another copy of the letter of support from the Superintendent of the Virginia Military Institute; a 28 June 1998 letter by MAJ CJW regarding the applicant’s contested OER; a 6 November 1998 Memorandum for Record prepared by CPT DRD regarding the applicant’s performance; a 29 June 1998 Memorandum for Record prepared by SSG DAH regarding the applicant’s performance; a 1 September 1999 letter of support from Hungarian COL ZP; a 1 September 1999 letter of support from the Mayor of Taszar; a 1 September 1999 letter of support from a Hungarian lieutenant colonel [hereafter identified as Hungarian LTC LF]; a Memorandum for Record by the Deputy Staff Chaplain of the NSE for Operation Joint Guard regarding the applicant’s character and performance; an article published in the Stars and Stripes on 30 January 1998; an announcement of the flag raising ceremony on 30 January 1998 at Taszar Air Base, Hungary; five pages of local U.S. military and Hungarian newspaper articles regarding U.S./Hungarian activities; a photocopy of the 111th Area Support Group Commander’s Coin presented to the applicant; a photocopy of the NSE Command Sergeant Major’s Coin presented to the applicant; a photocopy of the Hungarian Commendation Coin presented to the applicant; a photocopy of a Hungarian Military Decoration for Achievement presented to the applicant; a copy of a DA Form 1059 (Academic OER) covering the applicant’s attendance at the Civil Affairs Officer Advanced Course (15 September 1997 through 26 September 1997); and a copy of the certificate for award of the NATO Medal awarded to the applicant.
At TAB F, a copy of the Proceedings (AC97-06802) of the ABCMR, dated 28 August 1997, with a legal advisory opinion from the Total Army Personnel Command Staff Judge Advocate addressed to the Special Review Board.
At TAB G, a copy of the decision by the U.S. Army Reserve Personnel Command, dated 13 December 1999, in response to the applicant’s appeal of the contested OER; a copy of the applicant’s 24 September 1999 appeal of the contested OER; a copy of the contested OER; a copy of the 28 June 1998 memorandum by MAJ CJW; a copy of the 6 November 1998 memorandum by CPT DRD; a copy of the 29 June 1998 memorandum prepared by SSG DAH; a copy of the 1 September 1999 letter of support by Hungarian COL ZP; a copy of the 1 September 1999 character reference prepared by the Mayor of Taszar; a copy of the 1 September 1999 letter prepared by Hungarian LTC LF; a copy of the 4 May 1998 character reference by the NSE staff chaplain; a copy of the 2 September 1999 character reference by the Superintendent of the Virginia Military Institute; a copy of an article published in the Stars and Stripes on 30 January 1998; a copy of an announcement of the flag raising ceremony on 30 January 1998 at Taszar Air Base, Hungary; a copy of five pages of local U.S. military and Hungarian newspaper articles regarding U.S./Hungarian activities; a photocopy of the 111th Area Support Group Commander’s Coin presented to the applicant; a photocopy of the NSE Command Sergeant Major’s Coin presented to the applicant; a photocopy of the Hungarian Commendation Coin presented to the applicant; a photocopy of a Hungarian Military Decoration for Achievement presented to the applicant; a copy of a DA Form 1059 (Academic OER) covering the applicant’s attendance at the Civil Affairs Officer Advanced Course (15 September 1997 through 26 September 1997); and a copy of the certificate for award of the NATO Medal awarded to the applicant.
At TAB H; a memorandum to the ABCMR, dated 1 April 2001, from the USAR Brigadier General in command of the U.S. Army Civil Affairs and Psychological Operations Command.
6. In his five-page memorandum, the applicant provided the following background information. He stated that, from December 1997 until June 1998, he was deployed to the United States NSE for Operation Joint Guard, in Budapest, Hungary, as the G-5 ISB [initial staging base] team chief which was a position designated for an officer in the rank of lieutenant colonel. During his time as team chief, he met and began a relationship with a young Hungarian woman who was involved in local Hungarian politics. On or about 30 March 1998, the applicant’s immediate superior, an Army colonel [hereafter identified as COL FD], recommended that this relationship be discontinued. Subsequently, the applicant’s supervisor claimed that his recommendation was in fact an order not to see her during duty hours. The applicant further stated that, on or about 2 April 1998, his responsibilities required him to attend a static display at a school in Budapest. He asserted that all such events were open to the public and his Hungarian girlfriend attended the display at the schoolhouse.
7. The applicant contends that, as a result of the assumed violation of the alleged "order," from COL FD, he was charged with violations of the Uniform Code of Military Justice (UCMJ), specifically Article 90 (disobeying a lawful command), Article 92 (dereliction in the performance of duties), Article 107 (making an official statement with intent to deceive) and Article 133 (wrongfully and dishonorably endeavoring to influence the actions and statements of another person). The applicant stated that he consulted with counsel from the U.S. Army Trial Defense Service.
8. On 4 June 1998, the Article 15 hearing was conducted by the major general then in command of the NSE, Budapest, Hungary. The applicant stated that the Commanding General of the NSE heard testimony of several witnesses including the G-5 section chief of the NSE [hereafter identified as COL SM] and a female U.S. Army major [hereafter identified as Major SD] also a member of the section to which the applicant was assigned. The applicant also contended that the Commanding General of the NSE read and accepted at face value a written statement by COL FD who was the applicant’s supervisor, the G-5 deputy section chief and the accuser in this case without requiring him to testify in person. The applicant also contended that the first witness, COL SM, was heard in the Commanding General’s office with the door closed and outside of the applicant’s presence. The applicant asserted that, at no time, was he permitted to hear COL SM’s testimony; therefore, he was denied fundamental due process in that he was not able to confront the witnesses against him. Moreover, the applicant contended that without hearing COL SM’s testimony, he was deprived of the ability to properly defend himself.
9. The applicant further stated that, during the presentation of his defense, he called two witnesses, SSG DAH and an Army specialist four [hereafter identified as SPC B]. He contends that they were outside of the Commanding General’s office waiting to testify, but the Commanding General refused to hear them and stated that they were "biased" witnesses because the applicant had a working and friendly relationship with them. The applicant further contended that, in spite of the fact COL FD and MAJ SD had a far closer relationship than he did with either SSG DAH or SPC B, the Commanding General of the NSE accepted testimony from MAJ SD in support of COL FD. The applicant concluded that the Commanding General of the NSE deprived him of the fundamental right to defend himself by refusing to hear the testimony of his witnesses who were present and willing to testify.
10. The applicant stated that, at the conclusion of the Article 15 Hearing, the Commanding General of the NSE found that the applicant had violated Articles 90, 92 and 133 and he placed his handwritten “X” through the charge of violating Article 107 (making an official statement with intent to deceive), thus deleting it. The Commanding General of the NSE then imposed punishment of forfeiture of $1,000 for two months. The applicant asserts that, at the conclusion of the hearing, he requested an appeal and that the punishment the [forfeiture of $1000.00 per month] was never implemented.
11. The applicant further stated that, on or about 8 June 1998, he submitted documentation supporting his appeal of the Article 15 and the punishment to the Commanding General of V Corps. He contends that the appeal was never processed to completion and that, on or about 10 June 1998, the contested OER was submitted in conjunction with his transfer and return to the active reserves in Philadelphia, Pennsylvania. The applicant states that the OER was completed six days after the imposition of the Article 15 and two days after the submission of his appeal to the Commanding General of V Corps and that the OER stated in part that he had disobeyed a direct order.
12. The applicant further contends that the accusation of disobedience that led to the Article 15 and the contested OER was made in retaliation for comments the applicant made to the Inspector General regarding an improper relationship between COL FD and MAJ SD, the two individuals spearheading the prosecution of the Article 15. The applicant observed that he found it ironic that the Commanding General of the NSE was willing to consider COL FD’s and MAJ SD’s testimony despite their "friendly" relationship.
13. The applicant also stated that several officers within his section, specifically, CPT DD, MAJ CJW, and a female U.S. Army lieutenant colonel [hereafter identified as LTC DB] submitted reports against COL FD and MAJ SD for inappropriate fraternization between superior and subordinate; for retaliation for those reports; and for sexual discrimination. The applicant contends that the above-named individuals who complained were initially given referred OERs by their rater, COL FD, in apparent retaliation. The applicant stated that MAJ CJW’s memorandum of 1 August 1998 contains more details. The applicant further stated that according to court records, COL FD filed for divorce from his wife in 1998 and that he left his wife and two teen-aged daughters in October of 1998, approximately two weeks after a 15-6 investigation into his relationship with MAJ SD had been completed. The applicant also contends that, although his divorce is still not final, COL FD’s relationship with MAJ SD continues today.
14. The applicant also contends that the section chief of the G-5, COL SM, was aware of the situation involving COL FD and MAJ SD, but took no action. The applicant further contends that, when the rest of the G-5 section redeployed in July 1998, COL SM was kept behind and eventually given a letter of reprimand by the Commanding General of the NSE for his own conduct. The applicant also stated his belief that this reprimand, together with the relationship between COL FD and MAJ SD, is what the Commanding General of the U.S. Army Civil Affairs and Psychological Operations Command, referred to in his letter of support for the applicant’s appeal as "leadership issues that negatively influenced the command climate at the National Support Element of Operation Joint Guard."
15. The applicant then stated his opinion that his professional performance before, during, and after this isolated series of events completely supports the removal of the Article 15 and the contested OER from his records. He argues that he worked very hard to attain an Army commission and that he would never put it in jeopardy. He further asserts that, prior to his commissioning, he was an altar boy, Eagle Scout, honor student, and ROTC cadet. The applicant concludes that, since his commissioning, he has done everything that he could to provide the United States and the Army with exceptional service. He then listed examples of his excellence: graduation from the Civil Affairs Advanced Course on the Commandant's List, volunteering for deployment to Hungary, and selection over several senior officers to be the Team Chief of the ISB Civil Affairs Team, a lieutenant colonel position. He further concluded that his mission accomplishment during the rotation was excellent and both he and his NCOIC conducted dozens of missions and drove over 5,000 miles without a single injury or loss of even an expendable item. The applicant also stated that he has continued to maintain this high standard of performance, most recently as Operations Officer of a Tactical Planning Team for the 358th Civil Affairs Brigade, Norristown, Pennsylvania. In support of these contentions the applicant submitted various statements, OER's, newspaper articles, and other documents to serve as evidence of the way he has contributed to his unit and the US Army before, during, and after his time in Hungary.
16. The applicant also asserted that the unjust Article 15, the improperly conducted Article 15 hearing, and the consequences flowing from that hearing are the subject of this appeal. He argues that, as a result of the imposition of the Article 15, the Article 15 was recorded in his Official Military Personnel File (OMPF) and the accusations of wrongdoing repeated in the Article 15 were recorded in the contested OER in violation of AR 623-105.
17. The applicant also contends that Army Regulation 27-10 (Military Justice), paragraph 3-16(b), provides a soldier the following rights at an Article 15 Hearing:
(1) notice from the imposing commander of his intent to impose Article 15 proceedings;
(2) the maximum punishment that could be imposed;
(3) right to remain silent;
(4) the offenses committed;
(5) right to a trial by Courts Martial;
(6) the right to confront witnesses, examine evidence, and submit matters in my defense;
(7) and the right to appeal.
18. The applicant argues that he was denied the right to confront witnesses against him as required by paragraph 3-16(b) (6). As stated above, the Commanding General of the NSE heard the testimony of COL SM outside the applicant’s presence, and the applicant was not permitted to fully submit matters in his own defense. He contends that without the ability to hear COL SM's testimony, he could not refute his statements, and as evidenced by the punishment imposed by the Commanding General of the NSE, it had a prejudicial effect on the Commanding General. As a result, the applicant contends that he was denied the right to due process and that the failure of the Commanding General to examine COL SM in his presence is fatal to the Article 15 and the ABCMR must require it be removed.
19. Furthermore, the applicant asserts that Army Regulation 27-10, paragraph
3-16(b), provides a soldier with the ability to submit matters in his/her defense and, as the only available support for his defense, other than his own testimony, SSG DAH’s and SPC B’s testimony was highly relevant to the testimony and allegations made by his accusers. He argues that the Commanding General's refusal to hear the testimony of SSG DAH and SPC B substantially prejudiced his defense, and was a direct violation of the requirements of Army Regulation 27-10 paragraph 3-16(b)(6).
20. The applicant also states that the 28 August 1997 decision of the ABCMR in case AC97-06802 declared that a soldier has a right to be present during all phases of the Article 15 hearing and that it violates a soldier's right to due process under the US Constitution when she/he is not present during the hearing. The applicant contends that the cited ABCMR case and the facts of his case are similar--legally and factually. In both matters, he asserts witnesses were heard outside the accused’s presence, both defendants were not permitted to refute the statements made by the testifying witness, and both times it had a prejudicial effect on the accused. The applicant requests, in effect, that the Article 15 be overturned and removed from his OMPF based on regulation and this precedent.
21. In addition, the applicant requests that the Article 15 be completely removed from his records because he was denied appellate review. He argues that Army Regulation 27-10, Section IV, provides that an appeal may be made to the next higher superior authority within 5 days of the imposition of an Article 15.
22. At the conclusion of the hearing, the applicant states that he requested an appeal and submitted additional documentation with the appeal to Commander, V Corps within the 5 day time limit. He further argues: that, as shown on the Article 15 form, his appeal never received Judge Advocate review as required by Army Regulation 27-10, paragraph 3-34; that, as set forth in his appeal, he raised the issues of the Commanding General’s decision to hear COL SM's testimony outside his presence and the Commanding General’s refusal to hear testimony from personnel supporting the applicant’s defense when they were present and available to testify; that, had his Article 15 received Judge Advocate review, as is required by Army Regulation 27-10, the legal review would have concluded the Article 15 was improperly imposed; and that, even without Judge Advocate Review, the Commanding General of V Corps, never took action on the applicant’s appeal.
23. The applicant concluded that he was denied appellate review in violation of Army Regulation 27-10, paragraph 3-29 and that, despite these deficiencies, the imposed Article 15 was filed in his OMPF contrary to Army Regulation 623-105 paragraph 3-27. He further contends that the Article 15 was not filed for more than two years after the incident, depriving him of the ability to submit an appeal earlier, which almost certainly led to his being passed over for promotion during the November 1999 Captains board.
24. The applicant points out that paragraph 3-27 of Army Regulation 623-105 states that references to circumstances under review, actions or investigations that have not been taken to completion may not be referenced in the officer's OER. The applicant contends that the contested OER stated that he "used very poor judgment by disobeying a direct order and trying to get others to cover for him” and he "displayed total disregard to force protection rules and disobeyed a direct order." He again argues that, had the Article 15 hearing been conducted properly, he would have been exonerated and the allegations of disobeying a direct order could not have been entered into the contested OER.
25. The applicant also asserts that the previous information, the low numerical ratings in section IVa, and all negative information on the OER stem from personal animosity towards him in retaliation for conversations with the Inspector General (IG) and support of those officers who were intending to submit formal IG/EEO [equal employment opportunity] complaints. The applicant concluded that, in this light and under these circumstances, the contested OER should not be permitted to remain in his permanent records. He further states that, in retrospect, that he would not have made the choices he did in this incident, that the retaliatory actions of his superior officers were unconscionable and that this behavior alone morally requires the Article 15 and OER to be removed from his records.
26. The applicant continued that, considering the Commanding General of the NSE failed to properly conduct the Article 15 in accordance with the Constitutional requirement of due process and the Commanding General of V Corps failed to promptly and properly act upon his appeal, the ABCMR's 1997 decision (AC97-06802) requires the Article 15 and the adverse OER be removed. Accordingly, the applicant requests that the ABCMR remove any documents in his OMPF with references to the 4 June 1998 Article 15 as recorded on the DA FORM 2867 and the OER for period 6 December 1997 to 10 June 1998, DA FORM 67-8, dated 10 June 1998.
27. The applicant’s military records show that, at the time in question, the applicant was a reserve officer in the rank of first lieutenant serving on active duty as a member of the United States National Support Element, Operation Joint Guard, in Taszar, Hungary.
28. The applicant’s Official Military Personnel Files (OMPF) contain a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) with a continuation sheet. This document states, in effect, that the Commanding General of the NSE was considering punishment under the UCMJ for the following misconduct:
“In that you having received a lawful command from [COL FD], your superior commissioned officer, then known by you to be your superior commissioned officer, to not socialize with [Ms. EB] a Hungarian national, during duty hours, or words to that effect, did at Budapest, Hungary, on or about 2 April 1998, willfully disobey the same. This is in violation of Article 90, UCMJ.
In that you, who knew or should have known of your duties at Budapest, Hungary, on or about 1530 to 1720 hours 2 April 1998, were derelict in the performance of those duties in that you willfully failed to remain with your civil affairs team and to return promptly with them to Taszar, Hungary, as it was your duty to do. This is in violation of Article 92, UCMJ.
In that you did, at Budapest, Hungary, on or about 1200 to 1300 hours 2 April 1998, with intent to deceive, make to [MAJ SD], an official statement, to wit: “I will be leaving the school around 1700 because the school decided to bring in more groups of students to see the display” or words to that effect, which statement was false in the school was not bringing in more groups of students to see the display and you would be leaving the school earlier to be alone with [Ms. EB], which statement was then known by you to be so false. This is in violation of Article 107, UCMJ.” This charge is lined through with an “X”, thereby indicating that it was deleted. The “X” appears to be initialed and dated, but the writing is not legible.
“In that you did, at Budapest, Hungary, on or about 2 April 1998, wrongfully and dishonorably endeavor to influence the actions and statements of [PFC SMT], by telling her “do not take pictures of [Ms. EB], and do not tell anyone that we have seen each other today,” or words to that effect. This is in violation of Article 133, UCMJ.”
29. The DA Form 2627 shows that the Commanding General of the NSE signed the document and dated it “0705 11 MAY 1998.” In item 3 the applicant indicated with his initials that he did not demand trial by court-martial, that the hearing be closed, that a person to speak on his behalf is requested and that matters in defense, mitigation and/or mitigation will be presented in person. The applicant signed and dated this form “4 JUNE 1998.”
30. Item 4 of the DA Form 2627 shows that in a closed hearing after all matters presented in defense, mitigation, and/or extenuation having been considered, the punishment of “Forfeiture of $1000.00 for 2 months” was imposed. The Commanding General of the NSE also directed that the DA Form 2627 was to be filed in the applicant’s performance fiche and advised the applicant of his right to appeal to the Commanding General of V Corps. The Commanding General of the NSE again signed the DA Form 2627 and dated it “4 JUNE 1998, thereby authenticating item 4.
31. In item 7, the applicant initialed block 7c, thereby indicating that he was appealing and submitting additional matters. He again signed and dated the DA Form 2627 “4 JUNE 1998, thereby authenticating item 7.
32. The applicant submitted a copy of an 8 June 1998 Memorandum for the Commanding General of V Corps, SUBJECT: 1LT [applicant’s name omitted], Article 15 Appeal. In this memorandum, the applicant stated that the attached documents outlined his defense and requested consideration as to whether an Article 15 was truly justifiable given that he would never have disobeyed a direct order. The applicant further stated that he had always wanted to be in the Army, received a three-year Army ROTC scholarship, earned a commission, served in the USAR and the ARNG, volunteered for service in support of Operation Joint Guard, and served in a lieutenant colonel position. The applicant also stated that he deeply regretted any discredit that this incident might have caused, that he recognized the importance of obedience, that he would never have violated this “cardinal military virtue,” that becoming an Army officer was his proudest achievement, and that he wanted to continue serving his country in this way. He concluded by requesting the Commanding General of V Corps overturn the Article 15 as not being in the best interests of his section, his unit, the command, or the U.S. Army.
33. In support of his appeal, the applicant provided a 4 June 1998 memorandum for record which he authored and which outlined the procedural violations that he contends occurred during the Article 15 proceeding. Specifically, the applicant stated that the Commanding General of the NSE met with COL SM without the applicant present. He also asserted that both he and his defense counsel [hereafter identified as CPT CRM] twice attempted to call SSG DAH, but the Commanding General of the NSE refused to let SSG DAH enter his office. The applicant also challenged the fact that testimony was heard from MAJ SD who was a close friend of COL FD, but would not hear SSG DAH because he was friends with the applicant. He also noted that he was not able to call an Army specialist [hereafter identified as SPC B] to speak on his behalf. The applicant concluded this memorandum by stating that the aforementioned actions were a denial of due process and a fair hearing.
34. In support of his appeal, the applicant presented an 8 June 1998 memorandum authored by the applicant’s defense counsel. This memorandum was addressed to the Commanding General of V Corps and asserted that the applicant, through his defense attorney, requested the Commanding General of V Corps overturn the Article 15 for the following reasons as summarized.
35. First, the defense counsel contends the Commanding General of the NSE received information from COL SM and the staff judge advocate for Taszar without the applicant and his counsel being present and this information was used during the hearing. CPT CRM also wrote that the ABCMR held in a specifically named case that a soldier had the right to be present during his Article 15 and that the ABCMR found that it was a violation the solder’s due process rights to deny him the opportunity to hear testimony. He also cited an advisory opinion to this case which held that an Article 15 proceeding is “fatally defective” where a soldier is denied the opportunity to be present during the questioning of witnesses. Counsel also asserted the applicant was denied due process when the Commanding General of the NSE refused to hear SSG DAH and SPC B. Counsel also stated that the Commanding General of the NSE commented that if the applicant did not commit the offenses then he should have turned the Article 15 down and that if he did not turn down the Article 15 then he must be guilty of the offenses or believe that he could not prevail at court-martial.
36. In support of his appeal, the applicant presented a 4 June 1998 statement prepared by SSG DAH. This document supported the applicant’s assertion that the Commanding General of the NSE met with COL SM without the applicant or his counsel present and that SSG DAH did not testify.
37. In support of his appeal, the applicant submitted a copy of ABCMR case AC97-06802. Attached to this case was a legal advisory opinion addressed to the DA Suitability Evaluation Board from the colonel who was the command staff judge advocate of the U.S. Total Army Personnel Command.
38. In support of his appeal, the applicant also submitted a 4 June 1998 memorandum for record which he authored. The memorandum is 5 pages long and is entitled, “Rebuttal to Article 15 Allegations.” This memorandum specifically addresses the four charges listed on the DA Form 2627. Essentially, the applicant contended that COL FD did not give him an order to not socialize with Ms. EB during duty hours, that he was not derelict in the performance of his duties on 2 April 1998, that he did not make a statement with intent to deceive MAJ SD about his estimated time of departure on 2 April 1998, and that he did not wrongfully and dishonorably endeavor to influence the actions of PFC SMT on 2 April 1998.
39. In support of his appeal, the applicant submitted a sworn statement made by SSG DAH. This statement essentially described the events which occurred at the static display site in Budapest involving the applicant and Ms. EB. SSG DAH stated that the applicant did not try to hide Ms. EB’s presence, the statement to MAJ SD about the departure time was true, that he did not believe the force protection rules had been violated when the applicant left to be alone with Ms. EB; and that COL FD did not tell him that he had ordered the applicant not to see Ms. EB. SSG DAH concluded his sworn statement with personal and professional praise for the applicant.
40. In support of his appeal, the applicant submitted two undated handwritten statements by military personnel who were apparently part of the display in Budapest on 2 April 1998. These statements essentially indicate that the applicant never told these personnel not to mention that Ms. EB was there.
41. Among the documents submitted with the applicant’s appeal was a sworn statement from PFC SMT which supports the allegations of misconduct against the applicant. This statement essentially describes the events at the display on 2 April 1998. She stated: “Throughout the course of the day 1st LT [the applicant’s last name omitted] asked me not to mention to anyone his female acquaintance was at the display. He also asked that I not take her photo.” The statement also states that the applicant departed in a taxi with Ms. EB at 1530 [3:30 pm], the applicant, with the military personnel present, later drove Ms. EB in a military vehicle to the train station, and that the applicant and his military personnel did not return to their military base until after 2100 [9:00pm].
42. In support of his appeal, the applicant also submitted character references from the Superintendent of the Virginia Military Institute, the Hungarian COL ZP, the Mayor of Taszar; the staff chaplain of the NSE; LTC PRH of the PA ARNG, MAJ CJW of the NSE Civil Military Cooperation Center; CPT DRD, Ms. EB, and the applicant’s mother.
43. The final document submitted in support of his appeal was an OER for the period 27 February 1994 through 7 September 1994 for duties as the S-3 of the 1st Squadron of the 104th Cavalry, PA ARNG.
44. Item 8, 9, and 10 of the DA Form 2627 filed in the applicant’s OMPF are blank, thereby indicating that no action was taken regarding the applicant’s appeal. There also is no indication in the applicant’s finance records that the forfeiture imposed by the Commanding General of the NSE was withheld from the applicant’s military pay.
45. The applicant’s OMPF contains a 9 June 1998 request from the Deputy Commanding General of the NSE, through the Commanding General of the U.S. Army and Psychological Operations Command, to the Commanding General of the U.S. Army Special Operations Command for early redeployment and demobilization of the applicant. This memorandum stated that the applicant was no longer operationally required in theater and that his position would not be filled by the Follow On Force.
46. The applicant’s OMPF contains a DA Form 67-8 (the contested OER) covering the period 6 December 1997 through 10 June 1998. This OER covered six months of duty as the Airfield Team Chief for the Civil Military Operations Center, National Support Element, in Taszar, Hungary.
47. The rater for the contested OER was the Deputy G-5 of the NSE (COL FD) who authenticated his portion of the contested OER on 10 June 1998. The Senior Rater (SR), the G-5 of the NSE (COL SM), authenticated his portion of the contested OER on 10 June 1998. On 10 June 1998, the applicant placed his signature in item Part II (Authentication) indicating the administrative data in Part I was correct and that the rating officials for this OER were correct.
48. The applicant received ratings of “1” [the highest rating] in 8 of the 14 elements of professional competence from his rater. He received a “2” under Part IVa4 (Motivates, challenges and develops subordinates); a “2” under Part IVa5 (Performs under physical and mental stress); a “4” under Part IVa8 (Displays sound judgment); a “2” under Part IVa9 (Seeks self improvement); a “2” under Part IVa10 (Is adaptable to changing situations); and a “4” under Part IVa11 (Sets and enforces high standards).
49. Under Part IVb (Professional Ethics) the rater entered a comment in reference to Parts IVa8 and IVa11: “Officer used very poor judgement (sic) by disobeying a direct order and trying to get others to cover for him.”
50. Under Part V (Performance and Potential Evaluation), the rater placed his “X” in the third block (Met Requirements) of Part Vb (Performance During This Rating Period). In Part Vc (Comments on Specific Aspects of the Performance), the rater noted the applicant did a “good” job in leading the Airfield Civil Affairs Team, executing the missions assigned, scheduling most missions in a timely fashion with proper supervision and provided after action reports on time. The rater also commented: “However, he [the applicant] exercised poor judgement when he disobeyed a direct order.”
51. In Part Vd (This Officer’s Potential for Promotion to the Next Higher Grade), the rater placed him in the third block (Do Not Promote) and stated in Part Ve (Comment on Potential): [The applicant] “is not suited to military service and does not demonstrate the leadership qualities/traits required to be an effective officer. Therefore, I would not promote him to the next grade.”
52. In Part VIIa (Potential Evaluation), the SR placed his “X” in the sixth block and commented [the applicant] “is a highly educated officer who accomplished many outstanding missions consisting of ceremonies, static displays, and briefings. However, he displayed total disregard to force protection rules and disobeyed a direct order at a static display event. Additionally, on two occasions, he left his group, displaying negligence in his duties as the officer in charge of the mission.”
53. The SR profile for this report showed the applicant as one of three officers in the sixth block (3/5/3/1/1/3*/0/0/0). (The asterisk indicates the applicant’s position.)
54. The SR referred the contested OER to the applicant on 10 June 1998 in accordance with paragraphs 4-27 and 5-28 of Army Regulation 623-105 (Officer Evaluation Reporting System). The stated reason for the referral was that the contested OER recommended that the applicant not be promoted.
55. The applicant acknowledged receipt of the referral of the contested OER and stated that he “emphatically” did not concur with it and will appeal it.
56. The contested OER with the referral documentation was received by Headquarters Department of the Army (HQDA) officials, processed on 6 July 1998, and placed on the applicant’s OMPF.
57. The applicant’s OMPF also contains an 11 June 1998 memorandum addressed to the applicant. The subject line of this memorandum is “General Officer Memorandum of Reprimand” [hereafter referred to as a “GOMR”]. The memorandum states:
“1. On 11 June 1998, I saw you walking and holding hands with [Ms.EB], a local national involved in Hungarian politics. This occurred at the Life Support Area, Taszar, at approximately 1045 hours. Later the same day, [COL FD] observed you sitting with [Ms. EB] in a tent. Your actions violated two direct orders not to see [Ms. EB] during the duty day, given to you by [COL FD] on 30 March 1998 and 1 April 1998. This most recent behavior occurred exactly one week after [the Commanding General of the NSE] imposed nonjudicial punishment on you during Article 15 proceedings for misconduct which included violating the same orders concerning [Ms. EB].
2. You are reprimanded. Your flagrant insubordination violated the Uniform Code of Military Justice and the high standard of conduct from a commissioned officer. Your behavior is particularly reprehensible because it followed one week after being punished for the same misconduct. This demonstrates you clearly have not learned your lesson, and cannot be trusted to obey the orders of your superiors. Your behavior has brought discredit upon yourself, and will not be tolerated by this command.
3. I impose this reprimand as an administrative measure and not as punishment under Article 15, UCMJ. I am considering whether to direct that this reprimand be filed in your Official Military Personnel File. I will not make a final determination regarding filing until after I receive and consider any response you may submit.
4. Reply by endorsement through your chain of command not later than 7 days from receipt of this reprimand. Your reply will include one of the statements contained in AR 600-37, paragraph 3-6, and may contain any written information you want me to consider. If you desire, you may consult the defense counsel at Tuzla, at DSN 762-3563.”
58. By memorandum, dated 2 July 1998, the applicant submitted a statement and documents in response to the proposed filing of the GOMR. The applicant initially acknowledged that he read and understood the unfavorable information presented against him. He then asserted that the allegation that he had violated an order was “inaccurate,” that both COL SM and the Commanding General of the NSE had authorized him to see Ms. EB when not on duty, and that he was not on duty when he saw Ms. EB on 11 June 1998.
59. Further in his response to the filing of the GOMR, the applicant argued (as summarized) that he was out-processing that day for return to the United States. He was advised, and his escort officer (the G-5 personnel officer) heard, that after out-processing he would have no further duties. He asked if he could see Ms. EB and was advised that there was no problem with that by the warrant officer out-processing him.
60. The applicant further stated that he had “absolutely NO intention of skirting authority in any way,” and that he believed it was permissible for him to meet with Ms. EB since the escort officer assigned to expedite his release from active duty (REFRAD) process knew of his situation and interposed no objection. The applicant then argued that soldiers assigned to the NSE are technically on duty 24 hours a day, but that the the Commanding General of the NSE and COL SM had authorized the applicant to see Ms. EB “when I was not actively carrying out the tasks of my assigned position; that is, on Sunday, on Saturday afternoon, in the evenings etc.” He then described duty hours as determined by each section in accordance with its mission and stated that the warrant officer conducting his out-processing did not consider the out-processing day as a duty day.
61. The applicant further stated that since he had no duty position, since he had no duties, since he had been reassigned to a unit 5000 miles away, and since the entity which had control of him did not count this day as a duty day, then how could it be concluded that he was seeing Ms. EB during the duty day. The applicant finished his response by stating, in retrospect, that he showed poor judgment in seeing Ms. EB at that time since it might appear that he was not taking the command’s earlier rebuke to heart, that he regretted any inconvenience and embarrassment that he may have caused the command and that he implored the command to consider the foregoing, his service to the NSE as a lieutenant in a lieutenant colonel’s position and his strong desire to continue serving in the US Army as a citizen-soldier.
62. Evidence of record shows that the applicant’s response to the GOMR was reviewed by the Deputy Judge Advocate of the NSE who made a recommendation to file the GOMR in the applicant’s OMPF. Subsequently the Commanding General of the NSE directed filing of the GOMR in the applicant’s OMPF.
63. On 24 September 1999, the applicant submitted an appeal of the contested OER to the Deputy Chief of Staff for Personnel Special Review Board [hereafter referred to as the SRB]. In this appeal, he contended that the contested OER contained both administrative and substantive errors. The applicant stated that the administrative errors consisted of the absence of a two-digit STATE MILPO CODE in Part In and the rater and SR did not counsel him.
64. The applicant also appealed the contested OER on the basis of substantive grounds, specifically that the contested OER contained “unproven derogatory information.” In this matter, the applicant stated that his rater and SR “mention an allegation that I disobeyed a direct order” which is the sole cause for the negative comments by the rater and SR. He argues that this allegation was investigated and the contested OER was written after a preliminary finding, but the preliminary finding was not upheld and he was never notified of a final determination. The applicant concludes that Army Regulation 635-105 (Officer Evaluation Reporting System) prevents charges that are dropped from being included in an OER.
65. The applicant also contends that AR 623-105, paragraph 4-21 (b) states that "References will be made only to actions or investigations which have been processed to completion...and had final action taken." He argues that this was manifestly not the case here. Because this reference to "unproven derogatory information" taints the entire OER, he requested that the contested OER be completely removed. Failing this, he requests that any and all references to the allegation that he disobeyed an order and negative ratings stemming from that untrue charge, should be struck from the OER as "unproven derogatory information."
66. The applicant then argues that, except for the alleged incident of disobedience, which was unresolved at the time the contested OER was prepared, he would have received a favorable OER for his performance during the rated period. He states that his rater was the one who accused him of disobeying an order that was allegedly given. The applicant also asserts that the contested OER, judged by one seasoned legal assistance officer as the worst she'd ever seen, suggests that the rating of his performance was not an objective assessment, but an attempt to destroy his career because of a perceived personal slight. The applicant also contends the SR’s evaluation is entirely based on the rater's allegation that the applicant disobeyed an order.
67. The applicant addressed the numerical ratings which he received in Part IV of the contested OER. He stated that, contrary to the “2” rating under Part IVa4 (Motivates, challenges and develops subordinates), his noncommissioned officer in charge (NCOIC), SSG DAH, was given opportunities to act as the officer in charge of the Airfield Team on numerous occasions. In addressing the “2” rating under Part IVa5 (Performs under physical and mental stress), the applicant commented that the rater observed him in the field only twice in seven months and both events were successes.
68. The applicant addressed the “4” rating under Part IVa8 (Displays sound judgment); by pointing out that he was selected by the rater and SR over more senior officers to be the Airfield Civil Affairs Team Chief which is a lieutenant colonel duty position. He also contended that his team functioned virtually without supervision, his senior rater visited his office once, the rater never visited his office, and the rater let the applicant represent him at a “high-profile” event held on 30 May 1998. He also contends that, even after the being accused of disobedience the applicant continued to represent the United States and continued to conduct missions. The applicant concludes that, if his judgment were so poor, then he cannot imagine that he would have been chosen as the Team Chief, would have been allowed to continue in that position after the allegations, or would have been allowed to take charge of an important event.
69. The applicant also asserted that, contrary to the “2” rating under Part IVa9 (Seeks self improvement), he attended the Civil Affairs Advanced course within three months of joining a civil affairs unit and graduated on the Commandant’s List [top 20 percent of the graduating class], wrote a study of Hungary and learned basic Hungarian language while deployed. He also states that he accepted the lieutenant colonel position expressly because he did seek self-improvement.
70. The applicant responded to the “2” rating under Part IVa10 (Is adaptable to changing situations) by pointing out that he conducted over 50 missions in a wide variety of conditions ranging from small villages to the national capital and in a variety of positions ranging from spectator to focal point. He also stated that the joint US-Hungarian flag raising ceremony was a historic event involving many military and civilian dignitaries. He also argues that the letters from Hungarian officers and the Mayor of Taszar show that his performance are contrary to the rater’s assessment of “2.”
71. The applicant also asserted that, notwithstanding the “4” under Part IVa11 (Sets and enforces high standards), the rater wrote that he “did a good job in leading the Airfield Civil Affairs Team” and the SR wrote that he “accomplished many outstanding missions.” The applicant also pointed out that he scored over 290 points on the Army Physical Readiness Test and his NCOIC was approved for a decoration by his rater and SR; his Civil Affairs Team conducted over 50 missions and drove over 5,000 miles without a single mishap of any kind. He also asserted that there never was a single complaint about his missions, that he won the Martin Luther King Day Essay Contest, and ran a personal best in the Martin Luther King Day 5K Run. The applicant concluded that these facts are evidence that high standards were upheld throughout this period.
72. The applicant then addressed the narrative comments in Parts IV, V, and VII. He contends the rater’s statement that “Officer used very poor judgement by disobeying a direct order and trying to get others to cover for him” is unproven derogatory information and should be struck from the OER.
73. The applicant also contends that the rater’s placement of his “X” in Part Vb (Met Requirements) invalidates the rater’s comment in Part Ve “[The applicant] is not suited to military service and does not demonstrate the leadership qualities necessary to be an effective officer.” He argues that the assessment of “Met Requirements” proves that he is “suited to military service” and was “an effective officer.” The applicant also concluded that the rater’s selection of “Met Requirements” also refuted the SR’s allegation that the applicant displayed negligence in his duties.
74. The applicant asserts the rater’s comment that the applicant “did a good job in leading the Airfield Civil Affairs Team” does not support the numerical ratings in Part IVa, especially the ratings of “4” under Part IVa8 (Displays sound judgment) and under Part IVa11 (Sets and enforces high standards).
75. The applicant contends that the placement of the rater’s “X” in the “Do Not Promote” block of Part Vd does not correspond to the rater’s actions which included approval of the applicant’s mobilization, assigning the applicant to a lieutenant colonel position, and allowing the applicant to continue to serve as the Chief of the Airfield Civil Affairs Team with virtually no supervision after the rater accused the applicant of disobedience. The applicant restates his earlier position that he continued to perform missions and represent the United States in spite of the accusation of disobedience. The applicant concluded that the rater marked the “Do Not Promote” block solely because of his unproven allegations that the applicant disobeyed an order and he states the “Do Not Promote” block should be “blanked out” and the rater’s “X” placed in the Promote With Contemporaries block.
76. The applicant also contends the rater’s comment in Part Ve that [the applicant] “is not suited to military service and does not demonstrate the leadership qualities/traits required to be an effective officer” is based on unproven derogatory information and is in any case unsupportable. To support this contention, the applicant cited letters and documents from other “superior” officers as proof that no one else shared this opinion of him. He again contended that the comments in Part Ve stem entirely from the unproven allegation that he disobeyed an order.
77. The applicant also contended that the below center of mass rating by the SR in Part VIIa is not consistent with the SR’s comment that [the applicant] “is a highly educated officer who accomplished many outstanding missions consisting of ceremonies, static displays, and briefings.”
78. The applicant also contended the SR comment in Part VIIb that he “displayed total disregard to force protection rules” is untrue based on letters from other superior officers and stems solely from the unproven allegation of disobedience. The applicant also states the SR’s contention that the applicant “disobeyed a direct order at a static display event” is inaccurate by all accounts. The applicant argues that even his accuser said that the supposed order was given at Taszar Air Base, not an event. The SR’s allegation that the applicant “displayed negligence in [his] duties as the officer in charge of the mission again comes diretly from the untrue charge of disobeying an order and is “unproven derogatory information” which should be struck from the contested OER.
79. The applicant concludes his appeal with the statement that he recognizes the importance of obedience and would never have violated that “cardinal military virtue.” He then states he was an altar boy, an Eagle Scout, a member of the church choir, a high school honor student, ROTC scholarship cadet, volunteer high school coach, a member of the neighborhood watch, and a church lector. He contends that if this “unjust OER stands that he will not be able to continue serving his country as an Army officer.
80. The applicant then restates the regulatory authority regarding “unproven derogatory information” from being mentioned in an OER. He contends that the regulation was not followed in this case and requests that the contested OER be removed from his records as “invalid.”
81. In support of his appeal, the applicant submitted 23 enclosures which have already been listed in the index available to the Board and described in these Proceedings.
82. The applicant was notified by U.S. Army Reserve Personnel Command
(AR-PERSCOM) memorandum, dated 13 December 1999, that the SRB determined the evidence submitted by the applicant did not justify altering or withdrawing the contested OER. Further, the memorandum stated that the appeal did not provide sufficient evidence of clear and convincing manner as outlined in Chapter 9 of Army Regulation 623-105 for the SRB to consider it at this time. The SRB also indicated that a favorable decision could not be rendered at this time and an unfavorable decision would only serve to highlight this adverse OER.
83. The SRB noted that the applicant had provided self-authored statements and numerous third party statements, but did not provide substantive evidence the rater or SR assessments are either inaccurate or unjust. The SRB specifically addressed the absence of supporting statements from rating officials or other senior officers in the applicant’s chain of command at the time of the rating who might support the claims of administrative and substantive inaccuracy. The Board also noted that the applicant provided no official results of any inquiry or investigation which might substantiate his claims or that the contested OER was unjust, lacked objectivity and/or included unproven derogatory information. Finally, the SRB concluded that there was no evidence provided to overcome the “presumption of regularity” as outlined in paragraph 5-32a of Army Regulation 635-105.
84. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial (MCM) and the Rules for Courts-Martial (RCM) contained in the MCM.
85. Army Regulation 27-10 states in pertinent part, the applicable policies for nonjudicial punishment. The regulation states that nonjudicial punishment may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; preserve a soldier’s record of service from unnecessary stigma by record of court-martial conviction; or further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings, will be recorded on DA Form 2627. The regulation also states that absent compelling evidence, a properly completed, valid DA Form 2627 will not be removed from a soldier’s record.
86. paragraph 3-1l of Army Regulation 27-10 governs the imposition of punishment and states that punishment will not be imposed by the commander unless the commander is convinced beyond a reasonable doubt that the soldier committed the offense or offenses. This provision of regulation states that, if the imposing commander decides to impose punishment, then ordinarily the commander will announce the punishment to the soldier and the commander may also, if he or she desires, explain why a particular punishment was imposed.
87. Paragraph 3-18m of Army Regulation 27-10 requires that the appellate rights and procedures, which are available to the soldier, will be explained.
88. Paragraph 3-31 of Army Regulation 27-10 states that all appeals will be made on a DA Form 2627 or DA Form 2627-1 and forwarded through the commander who imposed the Article 15 to the superior authority. The regulation requires that the superior authority will act on the appeal unless otherwise directed by competent authority. The regulation also provides that the soldier may attach documents to the appeal for consideration.
89. Army Regulation 623-105 (Officer Evaluation Reporting System) establishes the policies and procedures for the OER system.
90. Change 1 to Army Regulation 623-105, dated 1 April 1998, states that Army Regulation 623-105, dated 1 October 1997, is not effective for USAR officers until 1 October 1998. This change also states that the Officer Evaluation Support Form procedures in chapter 3, section 2, of the regulation are effective 1 October 1997 for all officers.
91. Paragraph 4-27 of Army Regulation 623-105 requires that certain types of Officer Evaluation Reports (OER) be referred to the rated officer for acknowledgement and comment before they are sent to Headquarters Department of the Army. Listed among those types of OER’s requiring referral are any report with negative remarks about the rated officer’s ethics in Part IVb and/or in the rating officials narrative. Further, the regulation also requires that any report with a potential evaluation in Part Vd of “Do not promote” or narrative comments to that effect from any rating official require referral to the rated officer.
92. Paragraph 3-10 of Army Regulation 623-105 states that the senior rater is the senior rating official in the rating chain. The senior rater uses his or her position and experience to evaluate the rated officer from a broad organizational perspective. His or her evaluation is the link between the day-to-day observation of the rated officer’s performance by the rater and intermediate rater and the longer term evaluation of the rated officer’s potential by DA selection boards. Paragraph 4-16b of this regulation states that the SR will enter comments in Part VIIb and that these comments will normally address the potential evaluation but may also address performance, the administrative review, or the evaluations by the rater and the intermediate rater.
93. Army Regulation 623-105 provides the opportunity to request a Commander's Inquiry or to appeal disputed reports. Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant. Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.
94. Paragraph 9-7 of Army Regulation 623-105 states that the burden of proof in an appeal of an OER rests with the applicant. Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.
95. Army Regulation 623-105 provides for a Commander’s Inquiry in cases where it is brought to the attention of a commander that an officer evaluation report (OER) rendered by a subordinate or a member of a subordinate command may be illegal, unjust or otherwise in violation of this regulation. The primary purpose of a commander’s inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record. A secondary purpose of a commander’s inquiry is to obtain command involvement in clarifying errors or injustices after the OER is accepted at Headquarters, Department of the Army. The commander involved will inquire into the matters alleged, but must confine his or her inquiry to matters relating to the clarity of the OER, the facts contained in the OER, the compliance of the OER with the governing regulation, and the conduct of the rated officer and members of the rating chain. The commander does not have authority to direct that an OER evaluation be changed, and the commander may not use command influence to alter the honest evaluation of an officer by a rating official.
96. Paragraph 7-12 of Army Regulation 623-105 states that Chapter 9 provides policies and procedures for appeals, but that ARPERSOM is responsible for screening and acting on all appeals submitted in ratings received during USAR service.
97. Paragraph 4-21 of Army Regulation 623-105 governs references to derogatory information in officer evaluation reports (OER). Essentially, this provision of regulation states that no reference will be made to an incomplete investigation concerning an officer. However, the regulation provides that any verified derogatory information may be entered on an OER whether the officer is under investigation, flagged, or awaiting trial. Specifically, the regulation states that, while the fact an officer is under investigation or trial may not be mentioned in an OER until the investigation or trial is completed, this does not preclude the rating chain’s use of verified derogatory information. As an example, the regulation states that, when an interim report with verified information is made available, then that verified information may be included in an OER. The regulation also requires that, when previously unverified information is later verified, then an addendum will be prepared in accordance with paragraph 5-35 and forwarded to Headquarters, Department of the Army. Similarly, the regulation provides that, if reported information should later be found incorrect or erroneous, then the officer must be notified of his or her right to appeal the OER in accordance with chapter 9. Finally, this regulation states that OER’s may not be delayed to await the outcome of a trial or investigation. Reports must be done when due and contain what information is verified at the time of preparation.
CONCLUSIONS:
1. As evidenced by the authenticated DA Form 2627, the Commanding General of the NSE, after preliminary inquiry, determined that the applicant was alleged to have committed the following misconduct:
1) violation of Article 90, UCMJ in that he did at Budapest, Hungary, on or about 2 April 1998, willfully disobey a lawful command;
2) violation of Article 92, UCMJ in that he was derelict in the performance of those duties in that he willfully failed to remain with his civil affairs team and to return promptly with them to Taszar, Hungary, as it was his duty to do;
3) violation of Article 107, UCMJ, in that he made an official statement with intent to deceive MAJ SD about the time of departure from the school in order to be alone with Ms. EB; and
4) violation of Article 133, UCMJ, in that he wrongfully and dishonorably endeavored to influence the actions and statements of [PFC SMT], by telling her do not take pictures of [Ms. EB] and do not tell anyone that he and Ms. EB saw each other on 2 April 1998.
2. After providing the applicant with the opportunity to consult with counsel, the Commanding General of the NSE, in closed session, considered the evidence presented, determined beyond a reasonable doubt that the applicant committed violations of the UCMJ (Articles 90, 92, and 133) of which he was accused, and imposed punishment of forfeiture of $1000.00 per month for two months.
3. As evidenced by the “X” annotated on the third allegation of misconduct on the continuation sheet of the DA Form 2627, the Commanding General of the NSE believed beyond a reasonable doubt that the applicant did not make an official statement with intent to deceive MAJ SD in violation of Article 107, UCMJ.
4. As evidenced by the DA Form 2627 authenticated by the Commanding General of the NSE and the applicant on 4 June 1998, the applicant elected to exercise his right to appeal the Article 15 to the Commanding General of V Corps. Documents submitted by the applicant show that he provided substantial documentation in support of his appeal, dated 8 June 1998.
5. The Board considered the numerous contentions set forth by the applicant regarding deficiencies in the Article 15 proceedings conducted by the Commanding General of the NSE on 4 June 1998. The Board noted that items 8, 9, and 10 of the DA Form 2627 in the applicant’s OMPF contain no entries, thereby indicating that the Commanding General of V Corps did not review and did not take action on the applicant’s appeal as required by Army Regulation
27-10. There is no other evidence in the records available to the Board which shows that any action was taken on the applicant’s appeal as required by Army Regulation 27-10. Based on these facts, the Board determined the absence of documentary proof showing the Commanding General of V Corps acted on the applicant’s appeal warrants removal of the Article 15 (the DA Form 2627 and its continuation sheet) from the applicant’s OMPF.
6. The Board specifically noted the applicant’s contention that, had the Article 15 process proceeded properly, then he would have been exonerated of the allegations of disobeying a direct order. The Board determined this conclusion by the applicant is without merit. Evidence of record shows the Commanding General of the NSE did determine beyond a reasonable doubt that the applicant did commit violations of Article 90, 92 and 133 of the UCMJ. The applicant’s supposition that the Commanding General of V Corps would have set aside the entire Article 15 on appeal is merely speculation by the applicant, especially in the absence of a decision by that appellate authority.
7. Further, the Board noted the applicant’s argument that if exonerated of disobeying a direct order in the Article 15 process or upon appeal of the Article 15, then comments that he disobeyed a direct order could not have been entered into the contested OER. The Board found that this conclusion by the applicant erroneously establishes a linkage between disciplinary actions and officer evaluation reports which does not exist in fact or regulation.
8. The Board considered all the matters regarding removal of the contested OER from the applicant’s OMPF. The Board noted the applicant signed Part IId of the contested OER, thereby authenticating the administrative data in Part I was correct. Thus, his contention that administrative errors rendered the contested OER invalid are without merit. Also his contention that he was not counseled cannot be addressed because he did not provide a copy of the DA Form 67-9-1 (OER Support Form).
9. The Board noted the contested OER was completed by the correct rating officials and referred to the applicant for comment as required by regulation. The Board further noted that, upon receipt of the applicant’s comments, the contested OER was properly received, processed and placed in the applicant’s OMPF by departmental officials. The Board also noted the applicant did not request a Commander’s Inquiry into the contested OER. As a result, the Board concluded, as provided for in regulation, that the contested OER in this case is presumed to have been prepared by the properly designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time the contested OER was prepared. Therefore, the Board further concluded that, in this case, the burden of proof in appealing the contested OER rests with the applicant, and, to justify deletion or amendment of the contested OER, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above.
10. The Board considered the applicant’s contention that "unproven derogatory information taints the entire OER.” However, the Board noted the rating official for the contested OER was the officer who gave the direct order to the applicant and he stated in the contested OER: “Officer used very poor judgement by disobeying a direct order and trying to get others to cover for him.” The Board also noted that the SR stated: “However, he displayed total disregard to force protection rules and disobeyed a direct order at a static display event. Additionally, on two occasions, he left his group, displaying negligence in his duties as the officer in charge of the mission.”
11. The Board does not find the statements by the rater and SR in the contested OER are unproven derogatory information. The Board clearly understands that regulation prohibits reference to an incomplete investigation concerning an officer, but regulation does allow entry of verified derogatory information in an OER whether the officer is under investigation, flagged, or awaiting trial. In this case, the Board determined the rater and SR comments in the contested OER are the considered opinions and objective judgments of the rating officials at the time the contested OER was prepared which make no reference to any on-going investigation or disciplinary action. The Board again noted that the applicant did not request a Commander’s Inquiry into this matter. Therefore, the Board determined that the applicant’s contention the contested OER should be expunged based on "unproven derogatory information” is without merit.
12. Furthermore, the Board noted that, in the applicant’s comments to the 11 June 1998 GOMR filing, he states the Commanding General of the NSE and COL SM (the applicant’s SR) authorized the applicant only to see Ms. EB “when [he] was not actively carrying out the tasks of [his] assigned position.” Based on the sworn statement by PFC SMT, the Board concluded that the applicant was in violation of the direct order not to see Ms. EB during duty hours, that he acted improperly when he told PFC SMT not to take pictures showing Ms. EB, and that he was derelict in his duties when he left the static display site in a taxi with Ms. EB at 1530 [3:30 pm]. It also appears to the Board that the applicant acted improperly and unnecessarily exposed his soldiers to risk when he, with other military personnel present, drove Ms. EB to the train station in a military vehicle late in the afternoon (after 5:00 pm), thereby delaying the return of the military personnel to their military base until after 9:00 pm that night. It is the Board’s view that this evidence clearly establishes the validity of evaluations and comments by the rater and SR.
13. The Board also noted the applicant’s contention that the SR incorrectly stated that the applicant violated a direct order at a static display. The applicant contends that the direct order was given at Taszar, not at the static display site. Contrary to the applicant’s contention, the Board understands the SR comment to mean that the applicant’s actions at the static display site were in violation of the direct order, specifically that order not to see Ms. EB during duty hours.
14. The Board noted the applicant’s contention that the accusations of disobedience, which led to the Article 15 and the adverse OER, were made in retaliation for comments by him to the Inspector General regarding an improper relationship between COL FD and MAJ SD. But, the Board also noted the applicant provided no proof the Article 15 or the rater’s adverse comments in the contested OER were retaliatory, that he had referred this matter to the Department of Defense Inspector General under the Whistleblower Protection Act, or that he made a statement to the Inspector General about the alleged relationship between COL FD and MAJ SD. The Board also noted that all documentation related to the investigation of an improper relationship and retaliation by COL FD and/or MAJ SD was filed by MAJ CJW, not the applicant.
15. The Board noted the applicant’s contentions regarding the numerical values in Part IV of the contested OER. While he presents his views on these ratings, he does not provide the views of officers situated similarly to the rater and SR regarding his development of subordinates, use of good judgment, self-improvement, or setting and enforcing standards. The fact he was selected to serve in a lieutenant colonel’s duty position does not dictate that his performance should or would receive in the highest ratings for professional attributes, performance and potential.
16. The Board noted the applicant’s contention that the rater’s assessment of “Met requirements” in Part Vb (Performance During the Rated Period) invalidates the rater’s comment in Part Ve (Comment on Potential) that [The applicant] “is not suited to military service and does not demonstrate the leadership qualities/traits required to be an effective officer. Therefore, I would not promote him to the next grade.” The Board determined that the applicant’s contention fails to recognize that the rating “Met requirements” addresses only the applicant’s performance and that the comment in Part Ve addresses only the applicant’s potential for further service. Therefore, the two assessments by the rater are not contradictory.
17. The Board noted the applicant’s contention that the rater’s assessment of “Do Not Promote” in Part IVd (This Officer’s Potential for Promotion to the Next Higher Grade) does not “correspond” to rater’s actions which included approval of the applicant’s mobilization, assignment of the applicant to a lieutenant colonel’s position, and allowing him to serve virtually unsupervised as the Chief of the Airfield Civil Affairs Team after the rater accused him of disobedience.
The rating in Part IVd is based on the rater’s view of the applicant’s demonstrated potential, not decisions which occurred before or at the time of the applicant’s entry on active duty. As such, these decisions do not dictate the rating the applicant should receive at the end of the rating period. The decision by the rater to leave the applicant in his duty position after allegations of disobedience surfaced is not an action which negates a “Do Not Promote” rating in Part Vd. In view of these facts, the applicant’s contentions do not warrant amendment of the rater’s evaluation of the applicant’s performance or potential or expunging the contested OER.
18. The Board noted the applicant’s contention that the below center of mass rating by the SR in Part VIIa is not consistent with the SR’s comments in Part VIIb that [the applicant] “is a highly educated officer who accomplished many outstanding missions consisting of ceremonies, static displays, and briefings.” The Board does not find the evaluations by the SR are contradictory. In Part VIIa, the SR assessed the applicant’s potential in comparison to all other senior rated officers of the same grade. In Part VIIb, the SR provided comments which gave credit to the applicant for his accomplishments on the applicant’s performance as well as the basis for the potential rating in Part VIIa. As a result, the Board determined that there is no basis to amend the SR potential evaluation.
19. The Board noted the applicant’s contention that the SR comment to the effect the applicant displayed total disregard of force protection rules is untrue. The Board was not provided a copy of the specific force protection measures for U.S. forces serving in Hungary; therefore, the Board has no ability to independently assess the applicant’s contention. However, the Board has already stated its view of the applicant’s actions at the static display site. Also, in the absence of evidence which contradicts the considered opinions and objective judgments of the SR in this matter, there is no basis to strike the SR comments from the contested OER.
20. The Board considered the applicant’s contention that professional performance before, during, and after the isolated series of events in Hungary completely support removal of the Article 15 and the contested OER from his records. The Board noted the applicant’s achievement as an altar boy, an Eagle Scout, an Army ROTC scholarship student, graduation from the Civil Affairs Advanced Course on the Commandant’s List. The Board also recognized that the applicant volunteered for the assignment in Hungary, that he was selected to serve in a duty position requiring a lieutenant colonel, and that he believes his service to the Army has been exceptional. However, The Board concluded that the applicant’s achievements and his own opinion of his service are not a basis for removal of the contested OER from his records.
21. The Board noted the applicant’s contentions with regard to the previous decision of the ABCMR in case AC97-06802, dated 28 August 1997. However, the ABCMR considers each case individually based on its own merit. Therefore, action by the ABCMR in case AC97-06802 is not a precedent for action in the case currently under consideration.
22. Further the Board also noted the documents prepared by MAJ CJW, but submitted by the applicant in support of his case. These documents were prepared by a third party and involve allegations concerning a relationship and actions by COL FD and MAJ SD. As such, MAJ CJW’s unsubstantiated allegations are not a basis for action by this Board in the matters raised by the applicant.
23. The Board also considered the statement of support from the Commanding General of the U.S. Army Civil Affairs and Psychological Operations Command. While this General Officer acknowledged “several leadership issues that negatively influenced the command climate at the National Support Element of Operation Joint Guard,” he was not present in the area of operations at the time of the event on 2 April 1998 and admitted that he possessed no personal knowledge of the events surrounding the Article 15. Therefore, his statement is not a basis to remove or amend the contested OER.
24. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.
RECOMMENDATION:
1. That all of the Department of the Army records related to this case be corrected by removing the DA Form 2627 and its continuation sheet from the OMPF of the individual concerned.
2. That so much of the application as is in excess of the foregoing be denied.
BOARD VOTE:
__KYF__ __RWA__ ___AAO__ GRANT AS STATED IN RECOMMENDATION
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
__Mr. Arthur A. Omartian_
CHAIRPERSON
| CASE ID | AR2001058068 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20020404 |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
| DATE OF DISCHARGE | YYYYMMDD |
| DISCHARGE AUTHORITY | AR . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | GRANT |
| REVIEW AUTHORITY | MR SCHNEIDER |
| ISSUES 1. | 281.0000.0000 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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