MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 February 2003
         DOCKET NUMBER: AR2002081344

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. James E. Anderholm		Member
Ms. Eloise C. Pendergast		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

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APPLICANT REQUESTS: In effect, that a Relief for Cause Officer Evaluation Report (OER), for the period 12 June 1998 through 27 January 1999, and the general court-martial (GCM) promulgation documents be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES: In effect, that because of the adverse OER he is currently facing a 1 March 2003 discharge from active duty. He claims that three years ago he went through a GCM for allegedly acting in an un-officer like manner with a female enlisted soldier. He claims that he was vindicated of everything except one minor matter. His punishment for this offense was a reprimand, which he states is a good indicator of what the finders of truth thought of the case against him. He claims that there is now new evidence that proves that the remaining minor matter is false and unworthy of belief.

The applicant alleges that the key to court-martial charges being brought against him was a videotape that allegedly showed him in a compromising position. He claims that no one was ever able to produce this tape, but there was lots of insinuation that he had done something wrong and the tape would prove it. The videotape has now turned up and he claims that it vindicates him. He states that he is not anywhere to be seen on the tape, and that this evidence along with the statements of three noncommissioned officers (NCOs) will prove he is totally innocent.

The applicant requests that the Board members consider the following factors when reviewing his case: his entire career, which is marked by outstanding OERs; the record of trial; the unanimous decision to restore his access to
Top Secret material; statements from direct witnesses, third parties, rating officials, and other official sources; and finally, the decision to retain him made by a Show Cause Board that vindicated him just a few months ago. He restates that he was charged with some very serious offenses, and absolved of those serious charges, and found guilty only of conduct unbecoming. He states that his detractors claimed that the tape showed he did something wrong, and the tape has now surfaced, which proves his detractors were lying because he is not on that tape.

The applicant claims that he has passed many hurdles to clear his name and restore his good standing in the Army. He now has been vindicated at every step. He states that every individual that has reviewed the evidence in this case is aghast that anyone could have found him guilty of anything. He claims his supporters, which include general officers, insist that the case against him is preposterous. Also, he states that given there is no case against him, he requests that the Relief for Cause OER in question be removed from his records.

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The applicant concludes by commenting that at a time when the Army needs quality soldiers who are willing to make sacrifices in the name of Liberty and Freedom, and given the current stop-loss, he requests that he be allowed the opportunity to continue. He asks that the Board please allow a proven soldier to continue to serve with his brethren and his country. He states that he has proven himself with over 13 years of loyal and dedicated service.

In support of his application, the applicant provides the enclosed copy of the OER appeal packet he submitted to the Officer Special Review Board (OSRB) with all supporting attachments; his security clearance reinstatement packet; a petition for clemency submitted by his court-martial defense counsel; court findings; support statements; and copies of his OERs.

COUNSEL CONTENDS: In effect, that the applicant has done everything possible to soldier back from the effects of this unfortunate incident. He was tried for allegedly acting in a manner unbecoming an officer with a female enlisted soldier. At his trial, he was vindicated of everything save one minor matter, which was in effect being in the wrong place at the wrong time. Counsel claims that normally such an incident would have been initially handled by an oral admonishment. The sole punishment imposed was a reprimand. Counsel states that he was not counsel of record at the court-martial; however, he is advised that the command considered a phantom videotape as crucial to their decision to send this case forward to trial in the first place. The tape reputedly showed the applicant in a compromising position in the restroom of a Korean night club. However, no one could ever produce the tape, but there was an enormous amount of insinuation suggesting that the tape could prove the applicant’s wrongdoing.

Counsel further states that a reprimand is a reprimand, whether given by a
court-martial or a superior officer. The crucial question is whether the chastised officer has learned a lesson and moved on to perform well. Counsel states that some decisions of the Board have usefully referred to this timeframe as a probationary period, and he provides a specific case number that he claims is an example of this type of decision. He also refers to an Air Force Correction Board decision that he believes is instructive. In this case, the wording on an OER was amended to accurately reflect what the officer actually did, nothing more or nothing less. Counsel further indicates that Army Regulations specify that removal of an OER is warranted in cases where it was premised on comments of which an officer is later absolved.

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Finally, counsel claims that it is significant that the applicant was vindicated at his court-martial. He was found innocent of all conduct except one minor indiscretion. The court-martial was squarely presented with the precise facts that are now before this Board. The applicant was fairly assessed, and found not guilty of numerous charges. Therefore, curtailing his career as a result of this one minor error in judgment is highly inequitable.

Counsel concludes by stating that the applicant is caught in something of a Catch 22, he has met every gate soldiering back from what was taken in the worse light, a minor misstep. After a full and fair hearing, the court-martial was telling the applicant that he did not do anything much, and acquitted him of all but one minor matter, and that is worth a reprimand, not even a forfeiture. Unfortunately, this one minor matter triggered a show cause board, which quickly voted to retain the applicant based on his solid performance and record, which includes superb OERs, general officer support, and reinstatement of his security clearance. Counsel claims that enough is enough and the applicant should not be pilloried forever for this one wrong call. It was after all, not done out of mean spiritedness. He met a trooper just back from the States and allowed her to stop for a sociable drink with her companions.

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

He was commissioned a second lieutenant and appointed in the United States Army Reserve (USAR) from Officer Candidate School on 18 January 1991. On
1 February 1995, he was promoted to his current grade, captain/0-3 (CPT/0-3), and he is currently serving on active duty at Fort Buchanan, Puerto Rico.

The OER in question was a Relief for Cause report that evaluated the applicant as a Company Commander of a tactical combat intelligence and electronic warfare company of the 2^nd Infantry Division in Korea. It covered the period
12 June 1998 through 27 January 1999, and the rater on this report was the commander of a military intelligence (MI) battalion in Korea, a lieutenant colonel (LTC). In Part IVa (Character), the rater responded “No” to the following four Army Values questions: Honor; Integrity; Selfless Service; and Duty. The rater gave “Yes” responses to the following three remaining Army Values questions: Courage; Respect, and Loyalty.

In Part IVb (Leader Attributes, Skills, and Actions) the rater responded “No” to only the Emotional attribute and “Yes” to the remaining 14 attributes, skills, and action questions. In Part Va (Performance and Potential), the rater placed the applicant in the third block (Unsatisfactory Performance, Do Not Promote). The rater comments supporting this evaluation included that the applicant had been relieved of his duties as a company commander for cause, and that he had taken a female soldier in his unit out for drinks at a well-known bar and socialized with her, even though she was 20 years his junior.
The rater further stated that the applicant later claimed that he took the soldier directly back to their home installation, although numerous sworn statements showed this statement to be demonstratively false. Instead the applicant took the solder and two other junior enlisted members of his battalion to another club. At this club, the applicant and the three soldiers entered a bathroom, where one performed a sexual act in a scene videotaped and replayed on a large screen television in the club before NCOs of the applicant’s own unit. The rater went on to state that this incident eroded his trust in the applicant’s judgment, integrity, and leadership, as well as his confidence in the applicant’s ability to lead soldiers in their battalion. The rater stated that he therefore relieved the applicant from his duties as a company commander for cause, and he did not recommend the applicant for promotion. Finally, the rater commented that the applicant should be required to show cause why he should remain in the Army.

In Part VII (Senior Rater-Promotion Potential) the senior rater (SR) on the report, a brigadier general (BG), placed the applicant in the third block (Do Not Promote), and commented that he concurred with the rater’s decision, which was supported by the commanding general (CG), to relieve the applicant of his duties for cause. The SR further stated that he also agreed with the assessment that the applicant should not be promoted and not serve in a troop leading capacity in the future. The SR stated that the applicant’s conduct was reprehensible and of a nature that caused him to believe that the applicant should not be allowed to continue his military service. The SR concluded his comments by indicating that the applicant should be required to show cause for continued duty in uniform.

On 27 August 1999, the applicant was tried for three charges with a total of
five specifications of violating Articles 107, 133, and 134 of the Uniform Code
of Military Justice (UCMJ) by a GCM. He was found guilty of only one specification of conduct unbecoming an officer and gentleman on or about
9 January 1999.

On 29 December 1999, the applicant’s counsel submitted a petition for clemency to the GCM convening authority requesting that the guilty finding and resultant sentence of the GCM be disapproved. Counsel presented argument on legal error, improper voting procedure, former jeopardy, improper or undue influence, and requested clemency. However, the GCM convening authority approved the sentence and the general court-martial findings were promulgated in GCM Order Number 2, dated 14 January 2000, published by Headquarters, 2^nd Infantry Division, Korea.

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The applicant appealed his OER to the OSRB based on the same issues he now raises before this Board. The supporting evidence he provided with his appeal is in large part the same as he provides and that is included with his application to this Board.

On 30 March 2001, the OSRB returned the applicant’s appeal without action because it did not contain sufficient evidence of a clear and convincing nature to warrant consideration. The OSRB stated that the applicant provided his
self-authored statement, his GCM findings and a petition for clemency, reinstatement of security clearance with numerous supporting memoranda concerning reinstatement, and other personal documents. However, he failed to provide evidence that showed that the incident which led to his relief did not occur and that the statements made by the rating officials were not valid.
The OSRB also indicated that specifically the applicant failed to provide any statements from rating officials, or other senior officers in his chain of command at the time that the report was rendered, who might substantiate the inaccuracy or injustice. The OSRB commented that to the contrary, based on the guidance for rendering Relief of Cause reports, the applicant provided evidence, the GCM guilty finding and sentence, that supported the report.

On 9 July 2002, the applicant was notified by the Chief, Retirement and Separations Branch, that based on the recommendation of the general officer show cause authority, he would be retained on active duty.

A supporting letter from the Commanding General (CG), United States Army South, dated 1 October 2002, indicates that the CG fully supports the applicant’s endeavor to remove the OER in question and all adverse actions from his record. The CG states that the language and comments in the contested OER were based on allegations that the applicant was later absolved of during a GCM. The CG further states that in the time the applicant was assigned there, he has performed in an exemplary manner and that based on the Board of Inquiry recommendation, the contested report should be removed from his record.

The applicant provides several supporting statements from his senior leaders prior and subsequent to the incident in question, which all strongly attest to his strong character and his outstanding performance of duty. However, none were present at the time the events took place or when the contested report was issued.

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The applicant also provides statements from three NCOs who were present at the club where the incident took place. These statements all attest to the fact that the applicant did not participate in an illicit act with the junior female soldiers involved, and in fact some indicate that the applicant attempted to stop the activity. However, all confirm that he was on the videotape shown at the bar that night, which confirms he was in the bathroom when these events were taking place.

Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, prescribed the officer evaluation function of the military personnel system and provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System (OES) and Officer Evaluation Reporting System (OERS). It also provided guidance regarding redress programs including commander inquiries and appeals.

Paragraph 3-5 contains guidance on Relief for Cause reports, and states that a report is required when an officer is relieved for cause regardless of the rating
period involved. It further states, in pertinent part, that the minimum time requirements for rating officials do not apply. All rating officials must evaluate; however, any rating official who has not directed the relief, and does not agree with the relief, may state his or her non-concurrence in the proper narrative
portion of the report.

Paragraph 6-6 contains the policies for submitting an appeal to an OER. It states, in pertinent part, that an evaluation report accepted by DA and included in the official record of an officer is presumed to be administratively correct; have been prepared by the properly designated rating officials; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

Paragraph 6-10 contains guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal. It states, in effect, that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 6-6 should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

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

1. The Board carefully considered the applicant’s contention that the OER in question and the GCM promulgation documents should be removed from his OMPF, and all the supporting evidence he provided, which includes the supporting statements provided by members of his current command that were provided directly to the Board while the case was in process. The Board specifically reviewed the applicant’s assertion that the videotape he now provides proves that the language contained in the OER in question was in error and unjust because he is not shown on the tape.

2. The evidence of record confirms that the applicant was found guilty of conduct unbecoming an officer by a GCM, at which he was represented by legal counsel. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the court-martial process. Therefore, notwithstanding the fact that he was found not guilty of more serious charges, the Board finds no evidentiary or legal basis for removing the GCM promulgating documents from his record at this time.

3. The record further shows that the applicant was present when the incidents that were videotaped took place. This is further evidenced in the supporting statements from NCO’s who were present at the time, which were provided by the applicant. As the applicant claims, these statements do confirm that he did not participate in an illicit act with a subordinate female soldier and in fact some indicate that he may have been attempting to stop the activity. However, they also verify that they saw him on the videotape shown at the bar at the time, which confirms that he was in fact present in the bathroom of the bar when the incidents took place.

4. In the opinion of the Board, the language used by rating officials in
the contested OER is generally an accurate representation of the facts and circumstances outlined in the preceding paragraph, and the applicant
has failed to provide independent evidence to show that the contested report is in error or unjust.

5. In view of the facts of this case, the Board finds that the OER in question was processed and accepted for filing in the OMPF in accordance with applicable regulations, and there is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity, and/or to remove the contested report from the record at this time.

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6. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant and counsel have failed to submit evidence that would satisfy this requirement.

7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__FNE___ __JEA__ __ECP______ DENY APPLICATION

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

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INDEX

CASE ID	AR2002081344
SUFFIX
RECON
DATE BOARDED	2003/02/06
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 280	126.0300
2.
3.
4.
5.
6.