MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 August 2002
         DOCKET NUMBER: AR2001062249

         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
Mr. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Ms. Paula Mokulis		Member
Mr. Donald P. Hupman		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)

---

APPLICANT REQUESTS: Through counsel, that the Officer Evaluation Report (OER) he received for the period ending 31 December 1994 be removed from his records; restoration to active duty with credit for the time since his discharge; new promotion boards to replace those in which he was passed over for promotion (1995 and 1997 lieutenant colonel boards); restoration of his selection for Command and General Staff College (resident); back pay and allowances; removal of any mention of the two reprimands he received if applicable; and any other relief deemed appropriate by the Board.

APPLICANT STATES: Through counsel, that the disputed OER was based on two separate incidents; the first being an enlisted soldier accusing him of making a racial remark toward Puerto Ricans, the second being a letter which was accepted as proof that he, a married man, was having an affair with the wife of another soldier. The former accusation was initially substantiated in a cursory investigation, but a subsequent, more thorough investigation determined that the allegation was unsubstantiated. Counsel explains that the applicant was baited into making a statement concerning Puerto-Ricans by his accuser and the only person who corroborated the allegation. However, the applicant only said “that the Puerto Ricans he worked with had a good ol’ boy’s network; that some of them were unprofessional; and that some of the officers looked after themselves before they looked after their men.” Counsel argues that since the applicant was not making a blanket statement about all Puerto-Ricans, his statement should not be regarded as impermissible speech. The latter accusation was based upon a letter sent to the applicant at work from a Filipino woman (Mrs. D___) he tutored in the English language. That letter was read by the applicant’s rater who understandably, but mistakenly, interpreted it as indicating that a relationship which was romantic in nature existed between the applicant and Mrs. D___. Counsel argues that while Mrs. D___ may have desired a more involved relationship with the applicant, that was not the applicant’s desire. Counsel argues that the applicant cannot be held responsible for the actions of others.

Counsel then addresses the Officer Special Review Board’s (OSRB’s) denial of the applicant’s OER appeal. Counsel opines that one of the two reasons for the denial could be the OSRB’s “fierce inertia; at times their standard seems to be that an OER is presumed to be accurate, no matter what evidence to the contrary is provided.” The other reason is the statements the applicant’s Senior Rater (SR) made to the OSRB when it was processing the applicant’s appeal. Counsel then responds to the allegations made by the applicant’s SR.

In support of his request, the applicant submits the results of two lie detector tests. In one test he stated that, “In front of 8-10 people I made comments about my assignment in Puerto Rico, that some of the leadership was not professional and that many of the leaders took care of themselves before their soldiers.” He also was asked if he had ever made any other comments to the soldier who had filed the discrimination complaint against him, to which he answered, “No.” In a second lie detector test, the applicant denied ever having an affair with the woman who wrote the letter which formed the basis of his memorandum of reprimand (MOR). The polygraph examiner administering the two tests concluded that there was no deception indicated in the applicant’s answers.

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

That he entered on active duty in the Active Guard and Reserve (AGR) program, then a captain, on 22 December 1986. He served continuously as an officer on active duty in the AGR program, and was promoted to major.

On 27 July 1994, a junior noncommissioned officer (NCO) filed a formal racial discrimination complaint against the applicant, who was then performing duties as an assistant professor of military science (APMS). In that complaint, the NCO stated that while at Advanced Camp, ROTC, at Fort Lewis, Washington, the applicant started “to be very abusive against Puerto Ricans. In particular stating that ‘The plug should be pulled on Puerto Rico and hoping he would be the person pulling the plug, continuing that all Puerto Ricans were thieves, dirty and no-good, and know how to use the system to their advantage.’” The NCO charged that the applicant retaliated against her for telling the executive officer about his racial remarks by terminating her use of a military vehicle to commute to and from work. (The Board notes that the NCO did not state that the applicant directed those comments at her. She only stated that she overheard him saying those things.)

On 12 August 1994, the applicant was given a MOR for making racially inappropriate remarks. On 12 September 1994, the applicant responded to that MOR, stating that, “While I admit that I made some comments that could have been construed as being inappropriate, I never directed any racial or ethnic comments towards [the NCO who filed the discrimination charge against him]” and “I used poor judgment and I cannot defend that.”

The applicant was given another, undated MOR, due to the 2 December 1994 discovery of his involvement “in a questionable relationship with a female employee of the Evergreen Lodge at McChord Air Force Base.” The applicant responded to that MOR stating that he had assisted the woman in question (Mrs. D___) with English classes she had been taking. He stated that he was merely attempting to assist and encourage her. He said that the suggestive language Mrs. D___ used was unsolicited.

The applicant was given a relief for cause OER for the period ending 31 December 1994. In Part IV, Performance Evaluation – Professionalism, where on a scale of one to five a lower numerical rating is better than a higher numerical rating, the applicant was rated as all “Ones” with the exception of “Displays sound judgment,” for which he was rated as “Five.” His rater placed him in the “Usually exceeds requirements” block, the next to highest rating in a five field range, and placed him in the “Do not promote” block, the lowest rating in a three field range (not including the “Other” block). His rater stated that his “on-duty performance has been satisfactory; however, his actions off-duty resulted in suspension followed by a relief for cause based upon the results of a commander’s inquiry.” The applicant’s senior rater stated that his “off duty activities compromised his ability to train, motivate and mentor future Army officers. He violated the special trust placed in him as an officer. This action follows judgmental difficulties [the applicant] experienced at ROTC Advanced Camp 94 at the start of this rating period. Do not promote. Remove from AGR tour. [The applicant] has no potential for further service in the U.S. Army.”

On 22 June 1995, a supplementary OER review was conducted as required by the Army regulation which governs the preparation of OER’s.

On 13 July 1995, the contested OER was referred to the applicant for comment. He was given a suspense date of 27 July 1995 to submit any comments.

On 31 July 1995, the OER was forwarded through the chain of command for filing in the applicant’s Official Military Personnel File (OMPF). In the correspondence forwarding the OER it was stated that the applicant did not submit any comments by the suspense date established for him to do so.

On 21 August 1995, the applicant submitted a rebuttal to his relief for cause OER. In that rebuttal he implies that he did not make the comments alleged by the NCO; rather, when asked about his previous duty assignment in Puerto Rico by a fellow officer, he stated that he felt soldiers were not being taken care of, leadership was lacking, and many people in leadership positions were not working for the common good of the Army Reserve. He related how he had reprimanded the NCO who filed the discrimination complaint about her unauthorized use of a government vehicle, and opined that she had filed the discrimination complaint in retaliation for the reprimand he gave her. As for the “romantic” letter from the woman he was accused of having an affair with, he had thoroughly addressed that issue in his rebuttal to his OER. However, although he had kept the appropriate people apprised of the status of his rebuttal, and he was assured that the OER would be held until he submitted his rebuttal, the OER was forwarded without his rebuttal.

On 24 August 1995, the Commanding General (CG), Cadet Command, stated that he supported the applicant in removing the MOR (it is unclear which MOR the CG is referring to) from his OMPF. However, the CG added that “Your request to reverse the relief for cause Officer Efficiency Report is not within my purview.” The CG did not comment on whether he believed the OER should be altered or deleted.
On 4 October 1995, the DA Suitability Evaluation Board (DASEB) informed the applicant that his request to have the MOR he was given for his involvement “in a questionable relationship with a female employee” transferred to the restricted portion of his OMPF had been approved and, as a result, he was entitled to have a promotion reconsideration.

On 27 November 1995, a field Inspector General (IG) sent an endorsement to the Secretary of the Army Inspector General stating that “Following a review of the correspondence it has been determined [that the applicant] has been reprised against for making a protected disclosure and his allegation that [the NCO] did falsely and improperly accuse him of racial discrimination in violation of the Uniform Code of Military Justice is substantiated.” The IG explained that after the applicant had ordered the NCO to stop using a Government vehicle to commute to and from work, she filed the racial discrimination charge.

On 15 December 1995, the applicant was notified that he was not selected for promotion to lieutenant colonel during his first consideration.

On 14 May 1996, the CG, Cadet Command, sent a memorandum to the US Total Army Personnel Command (PERSCOM). In that memorandum the CG stated that the changed OER was not referred to the applicant as required; that the applicant was granted an extension of his suspense to submit comments on his relief for cause OER, but the OER was forwarded for inclusion in his OMPF prior to the new suspense date; that a supplemental review of the OER was not accomplished as required; that the findings of the Army Regulation (AR) 15-6 investigation that resulted in a letter of reprimand were not supported by the evidence (this investigation is not contained in the record submitted to the Board); and that the commander’s inquiry concerning the letter from the married woman which formed a partial basis for his relief was shallow, lacked objectivity and was not impartial.

The OSRB denied three appeals by the applicant on 7 June and 11 September 1996, and 24 September 1998. In those reviews, the recommendations of the field IG’s and the CG, Cadet Command, were discussed. In that regard, the OSRB stated that, “The fact that the ROTC Cadet Command CG supported the removal of the second Letter of Reprimand from the appellant’s file and that the DASEB’s decision was to remove the letter, does not set up a ‘cause and effect’ relationship with respect to the Relief for Cause OER. For example, the Commanding General did not indicate that he had second thoughts concerning whether or not the appellant’s behavior was inappropriate in the second incident.   Rather, his decision was most probably based on . . . whether he believed there was sufficient information available to justify a formal letter of reprimand as a result of the appellant’s conduct. In this case, there may have been doubt as whether the evidence was sufficient. Therefore, the CG gave the appellant the benefit of that doubt. However, this does not mean that the CG was not convinced that an improper relationship may have existed or that the relief for cause was not justified. The Relief for Cause OER was based on two incidents. In the first, it is noteworthy to recall that the appellant admitted to making racial remarks, notwithstanding the IG Finding of a NCO’s reprisal against him . . . Finally regarding the relief action, the OSRB did not find other relevant evidence which makes a compelling argument that an injustice was committed in this case . . . Regarding the Appellant’s Contentions that the Relief for Cause OER was inaccurately or improperly processed. The OSRB thoroughly analyzed the Relief for Cause OER process to determine if required actions were accomplished following the relief decision and if the contested OER was properly prepared. The Board found that the OER meets the presumption of regularity.”

On 20 July 1997, the applicant was notified that he was again considered for promotion to lieutenant colonel but not selected, and that second failure to be selected for promotion required him to be discharged from active duty.

On 21 November 1997, the applicant was honorably discharged due to his non-selection for permanent promotion, with half severance pay.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. While assigned as an ROTC cadre member in Hawaii in 1994, the applicant was accused of engaging in an inappropriate and perhaps adulterous relationship with Mrs. D____. The applicant was married at the time of the incident. Mrs. D____, the spouse of a retired service member, was employed at McChord Air Force Base (AFB) in Washington. In the summer of 1994, the applicant performed temporary duty (TDY) in support of ROTC Summer Camp at Fort Lewis, Washington, adjacent to McChord AFB. The relationship with Mrs. D____ came to light in late 1994 when an amorous letter from Mrs. D____ to the applicant was misdirected and opened by a ROTC cadre member in Hawaii. The letter, written by Mrs. D____ and dated 12 November 1994, contains the remarks “I miss you very much. I want to see you right now. I wish you were here beside me. I feel lonely when I think about you. Being away with (sic) you is like an eternity.” Mrs. D____ complains to the applicant that his weekly telephone calls are not enough. Further on in the body of the letter, Mrs. D____ wrote “I should not tell you this, but I feel I have to, just for the heck of it, ha ha, got you there, ‘gago.’ Anyway, I wrote this letter just to tell you I miss you very (sic).” Although unclear, this appears to be a reference to the applicant having told Mrs. D____ not to commit such things to writing.

2. Although the applicant presented a substantial packet in support of his request to remove the relief for cause OER, it should be noted that the packet contains only selected portions of a number of investigations, commanders’ inquiries, and board actions. The applicant and counsel contend that an innocent and limited acquaintance, limited to the applicant’s charitable correction of Mrs. D____’s English composition homework assignments, was misconstrued by the applicant’s command. Although the applicant and his counsel interpret the material presented to be overwhelmingly favorable to the applicant, a close reading indicates that there is far more to the story. Whenever an applicant chooses to submit only excerpted material, the applicant raises the question of whether he is attempting to conceal harmful or contradictory evidence from the Board. The applicant clearly raised that specter with the packet he has presented.

3. While it is clear from his 14 May 1996 memorandum that the General Officer (GO) who imposed the MOR for the improper relationship believed that the Commander’s Inquiry (CI) he directed to examine the Officer Evaluation Report indicated that the MOR was not supported by the available evidence, it is also clear that the GO did not support the substantive revision or removal of the final version of the Relief for Cause OER. This fact is significant because the CI appears to have been conducted specifically to examine the factual and administrative validity of the OER, not the basis of the MOR. In the memorandum provided, the GO explicitly directed a number of administrative corrections to the OER, but no substantive revisions. Although the matters made available to the Board do not reflect the distinction the GO drew between the basis of the MOR and that of the OER, the record clearly indicates that the GO considered the adequacy of the MOR and OER contemporaneously. The GO withdrew the MOR, but he did not recommend removal of the OER.

4. The Board should note that the GO makes reference to a “changed” OER in his 14 May 1996 memorandum regarding the result of the CI. Because the applicant did not provide differing versions of the OER to the board, it is impossible for the Board to determine with certainty what changes were made. It appears likely that if the changes to the OER were substantive, the changes were made in response to the determination that the allegations of racial bias were unfounded. However, because the changed OER is largely focused on the applicant’s improper relationship during off-duty hours, it is clear that his raters were satisfied that the improper relationship did occur and that the rating was an appropriate reflection of the officer’s performance.

5. The applicant and counsel urge that the finding by the GO that the original, local command investigation into the applicant’s improper relationship was flawed requires that the OER be removed from the applicant’s records. The logic of that assertion is flawed. A finding that an investigation into the applicant’s misconduct was flawed does not inevitably lead to the conclusion that the misconduct that was the subject of that investigation did not occur. In other words, the removal of the OER does not necessarily follow from the finding that an investigation into the allegations that resulted in the applicant’s relief for cause contained errors. Here, where the OER has an independent factual basis, the logic is clearly false. It is apparent from the conclusions drawn by the GO that he determined, to his satisfaction, that the OER had an adequate factual basis.

6. The applicant offers a 27 November 1995 U.S. Army Pacific (USARPAC) Inspector General (IG) point paper that contains the recommendation that “the letter of reprimand and Relief for Cause OER be removed from [the applicant’s] file” in support of his application. This IG document, apparently related to a hotline complaint by the applicant, is focused upon the MOR the applicant received for demonstrating racial bias, an MOR that has been removed from the applicant’s records. Although the IG document makes a passing reference to the applicant having been “involved in a second unrelated incident in December 1994 which resulted in his receipt of a second letter of reprimand that was subsequently revoked due to lack of evidence,” it appears that the USARPAC IG was unaware of the substance of the second incident and ignorant of the fact that the Relief for Cause OER made no reference to the allegation of racial bias. Further, the IG document appears to be based upon selected information provided by the applicant, rather than an independent investigation by the IG. Absent evidence to indicate that the USARPAC IG was fully aware of the facts surrounding the improper relationship and the subject OER, the IG document is irrelevant to the issues before the Board.

7. As a general matter, a polygraph examination has little independent value. Although the examination itself is a useful interrogation tool and the results of the examination may provide some slight corroboration of precisely defined, independently derived facts, the “science” of the polygraph is not generally accepted nor have polygraph results proven to be generally reliable. Be that as it may, many people who believe a polygraph examination to be both valid and probative will attempt to manipulate polygraph examinations in order to convince others of the truth or falsity of a fact. The applicant submitted the results of two polygraph examinations on two different topics. One of those reports in particular shows an apparent attempt by the applicant to manipulate the polygraph examination. The polygraph examination report provided by the applicant indicates that some of the relevant questions asked by the examiner were “During the year 1995, did you have a relationship with [Mrs. D____]?” and “While stationed in Hawaii, did you have a relationship with [Mrs. D____]?” Obviously, the applicant was accused of engaging in an improper relationship with Mrs. D____ in 1994, not in 1995, and the improper relationship occurred while the applicant was temporarily stationed in Washington State, not while he was permanently stationed in Hawaii. The questions employed during the polygraph examination appear to have been crafted to obtain a deceptive result. Although the polygraph result itself is of little independent value, such an obvious attempt to manipulate the polygraph indicates an attempt to deceive the Board.

8. Significant circumstantial evidence supports the conclusion that the applicant engaged in an inappropriate relationship with Mrs. D____.

(a) The mere fact that Mrs. D____ addressed her letters to the applicant at the ROTC detachment, rather than to his home, indicates that Mrs. D____, and presumably the applicant, who carried on an active correspondence with Mrs. D____, did not want the letters to arrive at the applicant’s home, where the applicant’s wife would have had ready access to the letters. An innocent explanation for the use of the ROTC detachment address is not offered, nor is a plausible explanation likely, because general Army policy has long prohibited the use of a military business address for personal correspondence.

(b) According to the statement of the applicant, he met with Mrs. D____ on only six occasions while he was TDY in Washington, each time only by coincidence and always in the company of others. This is inconsistent with the claim that his relationship with Mrs. D____ was based upon his regular aid with her English composition. Further, it is unclear as to why Mrs. D____’s husband, a retired member of the Air Force, or some other person more closely associated with Mrs. D____, could not assist her with her English composition. It seems unlikely that such a casual, coincidental acquaintance would assume the role of a language tutor. The applicant implies that after his departure from Washington, his relationship with Mrs. D____ was limited to correcting and returning her letters. In the 12 November 1994 letter that revealed the relationship, however, Mrs. D____ referred to weekly telephone calls from the applicant in Hawaii. What is more, the applicant appeared to have informed Mrs. D____ that he would be in the field at the time she wrote the letter. To a pen pal, the fact that the applicant would be out of the office and away from the phone would be unimportant. To a person involved in a closer relationship, who conversed only while at the office, outside the home, such a fact could be vitally important.

9. The fact that the DASEB removed the MOR related to the improper relationship from the applicant’s OMPF does not compel the Board to remove the OER. The action of the DASEB is balanced by the action of the OSRB. After examining the same or similar material to what is now presented to the Board, the OSRB declined to remove the OER on three separate occasions.

10. Finally, applicant’s counsel asserts that the applicant could not have engaged in an improper relationship because it would be so clearly inconsistent with the applicant’s “unblemished and exemplary” career. The Board noted the OER’s and AER's contained in the applicant’s Official Military Personnel File (OMPF). The applicant was frequently rated below center of mass by his senior raters, received a failed AER, and frequently received ratings of “2” in various sections of Part IV of the DA Form 67-8 OER, the area of the OER that focused on professionalism and character traits. The relief for cause OER is not as inconsistent with the applicant’s performance history as the applicant’s counsel would assert.

11. It is possible that the applicant was engaged in no more than an innocent attempt to aid Mrs. D____ with her English. However, the matters presented do not overcome the presumption of regularity attached to the OER. Were the applicant to reapply, providing complete records of the excerpted actions, the BCMR would be in a better position to evaluate his claims. As the record stands, however, the closer the Board looks, the stronger the basis for the OER appears.

12. 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

___lls ___ ___pm___ ____dph_ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001062249
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020806
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.	111.0004
2.
3.
4.
5.
6.

---

1. The applicant has repeatedly admitted to having used poor judgment in his comments concerning Puerto Ricans. His relief for cause OER only faulted him in judgment. As such, the OER appears to accurately reflect the applicant’s conduct during the period covered by the OER. Since the OER doesn’t mention the applicant’s MOR for the alleged illicit relationship with a fellow soldier’s wife, the deletion of that MOR has no bearing on the validity of the OER.

2. Counsel’s contention that the applicant’s statement “that the Puerto Ricans he worked with had a good ol’ boy’s network; that some of them were unprofessional; and that some of the officers looked after themselves before they looked after their men” is not a racial comment is not accepted by the Board. He directed his negative comments against a specific nationality, even if he did not include everyone in that nationality in his statement. Such negative comments, when targeted at a specific nationality or race, are racial. In addition, the NCO who filed the charge against the applicant has made a persuasive case that the derogatory comments made by the applicant concerning Puerto Ricans was not an isolated incident.
3. The Board has carefully considered the field IG’s conclusion that the applicant did not racially discriminate against Puerto Ricans; that the allegations made against him were in retaliation for actions he had taken against the NCO filing the charges. In this regard, the Board first takes note of the fact that the IG did not say that he had further investigated the matter. He specifically said that he made his determination based upon his review of the existing record. In his memorandum the IG focuses on the retaliatory nature of the NCO’s allegation, and not on the guilt or innocence of the applicant in uttering racial slurs. While it may be true that retaliation may have motivated the plaintiff in that incident, it doesn’t negate the validity or severity of the allegation. It is not uncommon for people to allow someone holding positions of authority to use offensive language until they are motivated to report the behavior.  Retaliation is certainly a motivator.

4. As for the statement by the CG, Cadet Command, the Board agrees with the OSRB; that the CG did not specifically state that he believed that the applicant’s conduct did not warrant his relief for cause OER. However, even if the CG had stated that, the applicant’s self-admission to making demeaning remarks towards Puerto Ricans, along with his self-admission to using poor judgment, would be sufficient to uphold the validity of the contested OER.