RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: November 25, 2003
         DOCKET NUMBER: AR2003091683

         I certify that hereinafter is recorded the true and complete record of the proceedings 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. Raymond V. O’Connor		Chairperson
Ms. Lana E. McGlynn		Member
Ms. Yolanda Maldonado		Member

         The applicant and counsel if any, did not appear before the Board.

         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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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that a General Officer Memorandum of Reprimand (GOMOR) and a relief for cause Noncommissioned Officer Evaluation Report (NCOER) be removed from his Official Military Personnel File (OMPF).

2. The applicant states, in effect, that the investigating officer (IO) did not fully investigate the incident that led to the GOMOR and NCOER in question. He states that the IO is now assigned with him at Fort Lee, Virginia, and recently told him that there was nothing there but the battalion commander made her say that there was.

3. The applicant provides a self-authored statement outlining issues he has that are related to the GOMOR he received. He also provides statements from various individuals who he claims had knowledge of the case, which were included in his NCOER appeal, and statements that were included in the Army Regulation 15-6 investigation.

CONSIDERATION OF EVIDENCE:

1. As of the date of his application to this Board, the applicant was still serving as a sergeant first class (SFC) on active duty at Fort Lee, Virginia.

2. On 12 December 2000, the applicant received a GOMOR from the Commanding General (CG) of 5th Signal Command. The applicant was reprimanded for violating the Army’s command’s policy regarding sexual harassment and relationships between soldiers of different ranks. The GOMOR indicated that the applicant solicited a subordinate soldier for a sexual relationship and then threatened that same soldier to keep her from filing a harassment charge against him. It also indicated that the applicant showed favoritism to another junior female soldier by selecting her for a staff ride to France directly after she came off leave, having lunch with her on multiple occasions, and having meetings with her behind closed doors. The GOMOR specified that it was imposed as an administrative measure.

3. The relief for cause NCOER in question covered the period December 1999 through September 2000, and it evaluated the applicant as a platoon sergeant for a maintenance company in Europe.

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4. The rater on the contested NCOER, a first lieutenant (1LT), responded “No” to questions 4 through 7 in 3(a) of Part IV (Values/NCO Responsibilities) of the contested report and provided the following supporting bullets comments: “is not governed by a set of high personal values. This lack of values is apparent in daily behavior”; “being unethical with members of platoon is a trademark of this soldier”; and “lack of fairness and equality cause of real concern.”

5. In Part IV B-F of the contested NCOER, the rater gave the applicant an “Excellent” rating in B (Competence), “Success” ratings in C (Physical Fitness & Military Bearing), E (Training), and F (Responsibility &Accountability), and a Needs Improvement (Much) rating in D (Leadership). The rater provided the following bullet comments to support the rating in Part IVD: “fostered a perception of favoritism which adversely affected the morale and discipline within the platoon” and “deliberately attempted to influence the conduct of an investigation by direct and indirect contact with its participants.”

6. In Part Va (Overall Performance and Potential-Rater), the rater evaluated the applicant as “Marginal.” The senior rater did not render an evaluation and entered a bullet comment that indicated that he did not meet minimum qualification. The reviewer, a lieutenant colonel, provided a memorandum in which he stated that the applicant had been temporarily relieved of his normal duties on 21 July 2000, and this relief became permanent based on the results of an Army Regulation 15-6 investigation.

7. On 1 September 2002, the applicant appealed the contested NCOER to the Enlisted Special Review Board (ESRB) contending that the report contained substantive inaccuracies and he requested that it be deleted. The ESRB contacted the rater who stated that when he first prepared the contested report he was preparing for deployment to Bosnia. He stated that the report was returned to him in Bosnia and he was informed by his commander that the reviewer did not agree with the report and was in fact relieving the applicant of his duties. The rater states that he was also informed that the applicant was pending Uniform Code of Military Justice (UCMJ) punishment for his misconduct. The rater confirmed that he had changed the report based on this information, and had he known that the UCMJ punishment was dropped, he would have rated the applicant differently.

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8. The ESRB concurred with the applicant’s contention that the final NCOER was changed from the draft. However, it pointed out that a draft is only a working tool to prepare a final report. Once the report was presented to the reviewer, it was his responsibility to examine the evaluations rendered by the rater and senior rater to ensure they were clear, consistent, and just in accordance with known facts. The reviewer on the contested report had temporarily relieved the applicant pending the results of an investigation, and when the investigation was completed and the reviewer relieved the applicant based on its findings. As a result, the draft report was appropriately changed to a relief for cause report.

9. The ESRB concluded the applicant was relieved based on the investigation results and not based on potential UCMJ punishment action. Thus, the reviewer properly carried out his responsibility. The ESRB finally found that the applicant’s contention that the report was the result of his refusing nonjudicial punishment was unsubstantiated. It also found that the counseling dates entered on the report were inaccurate and directed that they all be deleted from the report; however, this error did not warrant deletion of the contested NCOER.

10. On 16 October 2002, the applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) for the removal of the 12 December 2000 GOMOR from his OMPF. The DASEB found insufficient evidence to support the applicant’s contentions. It also noted that the GOMOR issuing authority considered the same arguments and evidence submitted by the applicant and determined they were not sufficiently convincing to warrant a different filing decision. The ESRB also finally found that the evidence submitted by the applicant was not sufficiently convincing to support his appeal.

11. The applicant provided several third party statements that all attested to his high level of performance. The majority of the statements were included in the appeal packets the applicant submitted to the DASEB and ESRB, and some were reviewed by the IO during the investigation conducted on the applicant.

12. Army Regulation 623-205 prescribes the policy for the enlisted evaluation system. It states that the system is designed to assist NCOs to meet the professional challenges of the future through the indoctrination of Army values and basic responsibilities. Paragraph 6-6 stipulates that a report accepted for filing in a NCOs record is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

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13. Paragraph 6-10 of the evaluation regulation contains guidance on the burden of proof necessary for a successful appeal of an NCOER that has already been accepted for filing in the OMPF. It states, in pertinent part, that in order to justify amendment or deletion of a report, clear and convincing evidence must be provided to show that the presumption of regularity should be applied to the report in question and/or action is warranted to correct a material error, inaccuracy, or injustice.

14. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files. Paragraph 7-2 (Policies and Standards) states, in pertinent part, that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

15. Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). It provides for the correction of military records in cases where there is clear evidence that the record is in error or unjust.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s contention that the IO did not fully investigate the incident that led to the GOMOR and NCOER in question and the supporting documents he submitted were carefully reviewed and considered. However, other than the applicant’s assertion that the IO admitted that the incident was not fully investigated, there is no evidence of record that would indicate the investigation was improperly conducted.

2. The evidence confirms that the GOMOR the applicant received was properly administered in accordance with the applicable regulation and that the issuing authority reviewed all matters of extenuation submitted by the applicant prior to directing the GOMOR be filed in the OMPF.

3. The evidence further shows that the applicant was relieved of his duties by the reviewer based on the results of the investigation and not because the applicant refused nonjudicial punishment. As a result, there is no evidence to support a conclusion that the evaluations rendered in the NCOER in question were in error or unjust.

4. By regulation, once an official document has been accepted and properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Subsequently, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, thereby warranting its removal from the OMPF.

5. The evidence shows that the applicant was relieved of his duties based on the results of an Army Regulation 15-6 investigation. As a result of the findings and conclusions of the investigation, he received the GOMOR and NCOER in question. The validity of these documents was upheld by both the ESRB and DASEB, and the applicant has failed to provide any new clear and convincing evidence for this review that would call into question the decisions rendered by these properly constituted Department of the Army boards.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

_LEM___ __YM__ __RO___ DENY APPLICATION

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




                  Raymond V. O’Connor
                  CHAIRPERSON

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INDEX

CASE ID	AR2003091683
SUFFIX
RECON
DATE BOARDED	2003/11/DD
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. 267	123.0700
2.
3.
4.
5.
6.