RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            12 May 2005
      DOCKET NUMBER:   AR20040007494


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's Officer Evaluation Report (OER)
for the period 1 December 1998 through 8 July 1999 and any investigative
and allied documents associated with it be removed from his Official
Military Personnel File. He requests that an instruction be made that the
same period should be considered to be non-rated.  He requests, if
eligible, that a special selection board (SSB) be convened to review his
corrected records.  He also requests a formal hearing.

2.  Counsel states that the applicant was relieved from his command for
allegedly directing his subordinates to produce a print product that had
not been properly authorized through psychological operations (PSYOP)
channels after he had been told it was not authorized and for his alleged
misrepresentations to his rater about the quantity that had been printed.
Aside from the substantively incorrect information in the contested OER,
the applicant strongly objects to the report on the basis that it included
no mention of his many accomplishments.

3.  Counsel states that the applicant assumed command of A Company, 3d
PSYOP Battalion, 4th PSYOP Group on 7 January 1999.  His unit was the PSYOP
printing company.  Between late January and late February 1999, he was
contacted concerning the possibility of his unit printing programs for the
Dedication to Fallen Comrades Ceremony hosted by the U. S Army Special
Warfare Center and School (SWCS).  Master Sergeant (MSG) P___ was the SWCS
point of contact.  Initially, MSG P___ told the applicant about the
possibility of this print product being provided by the applicant's unit.
The applicant told him that SWCS would have to requisition the print
product in order to "completely capture costs."  The applicant afterward
coordinated with Sergeant First Class (SFC) G___ at the Group S3 and
informed them that the request would be coming and that he could execute it
in conjunction with other missions.  SFC G___ spoke with MSG P___ and
informed him about the tasking process.  The applicant reasonably believed
that a tasker was forthcoming although he acknowledges that he never
followed up.  The applicant agreed that his unit would print the Dedication
to Fallen Comrades Ceremony brochure as part of his unit's training.  He
ensured that the ongoing PSYOP leaflet production mission which his unit
was tasked to complete was not compromised and, in fact, it was released
ahead of schedule.

4.  Counsel states that the applicant's First Sergeant had been assigned to
the unit about 3 months before the applicant assumed command.  Apparently,
he had had discussions with the applicant shortly after he assumed command
about an ongoing problem of individuals and organizations seeking out A
Company to have print products produced.  The First Sergeant learned that
the unit was printing "some Special Forces jobs" instead of printing
leaflets for the assigned mission and, rather than speak directly to the
applicant, he went directly to the battalion commander, Lieutenant Colonel
(LTC) Lip___.  On 14 April 1999, the applicant told LTC Lip___ that the
Fallen Comrades Ceremony brochure had been produced, that about 200 copies
had been printed, but that the product had not been tasked through the
Group or Battalion S3 offices.  LTC Lip___ informed the applicant that all
outside taskings had to go through the S3 offices otherwise "there was a
problem with authorization and expenditure of funds."  That same day, LTC
Lip___ received reports that 1000 copies of the program, rather than 200,
had been printed.  On that same day, LTC Lip___ appointed an investigating
officer (IO), and on 16 April 1999 he administratively relieved the
applicant as the company commander pending the outcome of the
investigation.

5.  Counsel states that, on 16 April 1999, the Deputy Commander, 4th PSYOP
Group learned of the printing problem, informed MSG P___ that SWCS would be
required to reimburse all expenses incurred in the printing, and then went
ahead and directed the 4th PSYOP S3 to formally task the battalion to print
the job.

6.  Counsel states that, in addition to trying to help the SWCS, the
applicant, in part, relied on the provisions of Army Regulation 25-30 (The
Army Integrated Publishing and Printing Program), paragraph 11-44e which
provides in part that:

      …During peacetime, when units are in a garrison status, commanders
may allow limited amounts of simulated mission training material to be
printed unless otherwise prohibited.

7.  Counsel states that both parties' recollection of the specifics of the
14 April 1999 conversation differed to a significant degree.  The applicant
recalled telling LTC Lip___ he had printed 200 copies of the brochure and
that it had to be reprinted because it did not line up correctly.  (He had
mentioned in earlier conversations that he intended to do the product and
no objection was raised).  LTC Lip___ said not to do that again, that
projects had to be approved by the group/battalion first.  The applicant
understood LTC Lip___ to mean finish this one job but not to make the same
error again.  The applicant did not realize there was a discrepancy in the
number of brochures printed (200 versus 1000) until the investigation was
initiated.

8.  Counsel states that, in his OER appeal, the applicant contended that
his relief from command had its roots in the actions of a disloyal First
Sergeant who aggressively pursued his relief from command.  The former
battalion executive officer backed up the applicant's contention.  The
applicant never breached integrity or professional ethics and wanted only
to gain recognition of his company and its unique capabilities.  The LTC
Lit___, who was acting commander of the 4th PSYOP Group at the time, backed
up the applicant's contention.  LTC Lit___ also confirmed that there was no
degradation of the mission while the SWCS programs were being printed.

9.  Counsel states that while technically the imposition of a relief for
cause OER is not viewed as "punishment," in reality such an adverse
administrative action is punitive in nature.  Army Regulation 623-105
recognizes the importance of accurate and impartial rating evaluations by
rating officials.  It states in part that evaluations will normally not be
based on a few isolated minor incidents.  It was a grossly disproportionate
adverse administrative action when compared to the minor, if not
inconsequential, nature of the underlying alleged misconduct and
constitutes an injustice for the following reasons:

      1)  The applicant realized no personal or pecuniary gain by printing
the brochures;

      2)  The applicant was commended for the very same print product by
the Deputy Commander and Commanding General of the SWCS:

      3)  There was no prejudice or adverse effect upon the unit's PSYOP
leaflet production mission;

      4)  The print product in question was a high profile official
function of the Army which reflected favorably on the Army and the
applicant's unit;

      5)  The print product in question was eventually authorized for
production by the Deputy Commander, 4th PSYOP Group;

      6)  The SWCS offered to reimburse the 4th PSYOP Group for the costs
incurred for the printing;

      7)  The applicant has enjoyed a competitive and heretofore
unblemished military career;

      8)  LTC Lit___ confirmed that "at no time did CPT P___ communicate
the number of printed Programs" and that such a finding by the IO was
incorrect; and

      9)  The applicant received no counseling from his rating officials
regarding his abilities as a commander as required by regulation.

10.  Counsel provides the 21 documents listed as exhibits to the
application.

CONSIDERATION OF EVIDENCE:

1.  After having had about 6 years of prior enlisted service, the applicant
was commissioned a second lieutenant on 7 February 1991 and entered active
duty on 20 August 1992.  He was promoted to captain on 1 March 1996.  He
was assigned to Company A, 3d PSYOP Battalion, 4th PSYOP Group, Fort Bragg,
NC on or about 7 December 1998 as the company commander.  This was the
airborne special operations print company whose mission is to produce and
disseminate printed products in support of PSYOP worldwide.

2.  Headquarters, 4th PSYOP Group (Airborne) memorandum for record,
subject: Print/Graphics Production SOP (standing operating procedures),
undated, applied to all organizations and personnel requesting print
support from A Company, 3d PSYOP Battalion.  Paragraph 4 stated that the
requester will prepare a DD Form 282 (DOD Printing Requisition Order) to
accompany each product.  The Heavy Print Facility Operations officer in
charge/NCO in charge will inspect all requests for completeness.  This
includes proper 4th PSYOP Group (Airborne) task endorsements, i.e.,
authorized signatures by Group and Battalion Operations, approving the
tasking and assigning a tasking number.

3.  On 16 April 1999, LTC Lit___ appointed an IO to conduct an informal
investigation into allegations of misappropriation of government property
and false statements by the applicant.  He also designated a Staff Judge
Advocate, Captain B___, as the IO's legal advisor.

4.  The IO obtained several sworn statements.  Excerpts from several
follow:

      Mr. C___ stated that he talked to a 3d Special Forces Group warrant
officer about a print job.  The warrant officer told him they had tried to
get the job printed by the Defense Printing Service but was told the
project was illegal.  At that point it was identified that the project was
actually for the Special Forces Association and Mr. C___ told the warrant
officer it could not be accepted.  That day Mr. C___ informed the applicant
the product was outside the authorized parameters of the company.  He saw
the project again on 13 April 1999 when it was printed.  (Mr. C___ did not
mention the Fallen Comrades product and apparently confused the illegal
Special Forces Association project with the legal Special Forces Conference
Fallen Comrades project.)
      First Sergeant M___ stated that shortly after the applicant assumed
command he explained to him the guidelines and procedures involved with
printing approved products that they get tasked to print.  This included a
warning to him about individuals and units seeking him out as the Print
Company commander to get favors printed for them.  He stated the applicant
fully understood their discussion on the potential consequences should they
print an unapproved or unauthorized job without a tasking and number, a
work order request, and a cost estimate.  He stated that he knew that Mr.
C___ and Sergeants First Class H___, D___, and D___ also explained the
process to him in detail.

      The Deputy Group Commander stated, in an unsworn statement, that he
first learned of the printing on 16 April 1999.  He was given MSG P___'s
name as the SWCS point of contact.  He informed MSG P___ that SWCS would be
required to reimburse all expenses incurred in the printing.  He then
directed the Group S3 to formally task 3d Battalion to print the leaflet.

      Major R___ (apparently the battalion operations officer) stated that,
following the Crisis Action Center meeting, LTC Lip___ asked the applicant
if he was printing something for the Special Forces conference.  The
applicant stated, "yes."  LTC Lip___ asked the applicant if he had a tasker
for that and the applicant said, "no."  LTC Lip___ said to the applicant,
"you don't print anything without a tasking from the Battalion S3."

      Sergeant First Class D___ (platoon sergeant for the Heavy Print
Facility) stated that on or about 1 April 1999 the applicant informed him
of the Special Forces conference project.  Sergeant First Class D___
contacted MSG P___, who told him he wanted 500 copies.  Once he got the
cost estimate, he took it to the applicant and gave him the cost estimate.
It was that day or the next day that the applicant told him that the number
of copies went from 500 copies to 700 copies.

      MSG P___ stated that he first discussed the matter with the applicant
around February 1999.  Informally, he inquired about the feasibility of the
applicant's unit printing 500 programs for the Dedication to Fallen
Comrades ceremony.  The applicant mentioned that his unit was in a lull
period and would use that as a training opportunity.  When MSG P___ later
contacted the Group S3, the taskings NCO indicated that the applicant just
received a real-world mission that would consume his entire effort.  MSG
P___ learned that the applicant planned to run all of his real-world
mission requirements and put the Dedication program last.  Sergeant C___
told him (MSG P___) that he had passed MSG P___'s request to increase the
number of programs to 700.  Overcome by events, MSG P___ never completed
the tasker.
      The applicant stated, in part, that the only objections he was aware
of were to the Special Forces Ball project and concern about conflict with
the leaflet production.  He stated there were other times that he
authorized products to be printed without Group or Battalion S3 tasking,
stating he considered the project(s) a rehearsal for the upcoming, tasked,
mission to do the Group change of command invites/programs.  At the time he
did not know there was a prohibition to his designating print projects
without Group/Battalion approval.  He stated that he did not know there was
a discrepancy in the numbers until after the investigation was initiated.
Prior to the investigation, he was not aware of a prohibition on seeking
out print missions without explicit Group/Battalion approval.

5.  The IO completed her investigation on 13 May 1999.  She made 20
findings:

      1)  that the applicant misappropriated and/or misused government
property when he directed his subordinates to provide graphic and printing
support without proper tasking and authorization;

      2)  that the applicant stated he was providing the said
graphic/printing support as a training opportunity in accordance with his
unit METL (mission essential training list).  The regulation states that
commanders may allow limited amounts of simulated mission training material
to be printed to allow unit personnel to stay proficient in equipment
operations.  The evidence showed the unit was already working 24-hour
operations on a real world mission (allowing them to stay proficient in
equipment operations); therefore, a reasonable person would not have the
need to undertake additional training missions;

      3, 4, 5, 6)  that the said products were produced at a cost to the
government of $128.00 and $175.00, respectively; that the battalion had not
received reimbursement for the services provided; that one other product
was given to the unit graphics NCO for redesign without proper tasking or
authorization; and that without the proper tasking and authorization costs
for those products could not be captured and the battalion would not be
properly reimbursed;

      7, 8, 9, 10)  that the applicant knowingly gave false statements to
LTC Lip___ and LTC Lit___ when he told them he had printed 200 programs;
the evidence showed he had knowledge that 700 copies were requested and at
least 700 had been printed; that MSG P___ initially requested 500 copies;
and the applicant told SFC D___ to print 500 copies initially;

      11)  that the project Mr. C___ believed to be illegal for production
was the program for the Special Forces Ball, which was never printed, and
that the product Mr. C___ saw was a different, legal-to-print product;

      12, 13)  that the applicant did not follow procedures when he decided
to provide the said graphic and printing support without proper tasking and
authorization per the SOP but knew which procedures to follow when he
directed MSG P___ to speak to the Group Tasking NCO;

      14, 15, 16)  that the applicant interpreted LTC Lip___'s statement,
"you don't print anything without a tasking from the Battalion S3" to mean
"in the future don't do that again;" that witnesses interpreted LTC Lip___
to mean cease production until proper tasking was in place; and, that two
days after their conversation, LTC Lip___ observed that the program was
still being printed without proper tasking and ordered the shop to cease
operations and redirected them to produce leaflets;

      17)  that the applicant stated he had informed LTC Lip___ on 14 April
1999 that the product had to be reprinted; however, LTC Lip___ and one
witness stated they did not know on 14 April 1999 that the product had to
be reprinted;

      18)  that the applicant's last assignment was with the 2d Battalion,
3d Special Forces Group, the same unit he agreed to do the products for and
he had known MSG O___ since 1987; and

      19, 20)  that MSG P___ said his request was for 500 copies initially,
then increased to 700 copies and that SFC D___ said the applicant told him
the initial request was for 500 and later the applicant increased it to
700; and that the applicant attributed the discrepancy to a
misunderstanding due to the multiple multi-million copy product runs his
unit was conducting at the time.

6.  The IO recommended the applicant receive a written reprimand and
concluded that his actions were an extreme departure from the standards of
integrity that an officer is expected to embody.  By lying to his battalion
commander alone he raised doubt as to whether he was fit to continue to
command his unit.  He displayed complete lack of judgment and integrity
when he lied and therefore his removal from command should be considered as
a consequence of his actions.  His actions gave the impression that he
performed those services as a favor to prior co-workers—the same thing his
First Sergeant had warned him about.  His actions were without proper
taskings and his actions adversely affected the PSYOP mission and morale of
his unit.

7.  On 13 May 1999, Captain B___, the Command Judge Advocate and legal
advisor to the IO, recommended approval of the IO's recommendations.

8.  On 1 June 1999, LTC Lit___ amended the IO's recommendation to read:
"That (the applicant) receive a written reprimand and other adverse actions
as appropriate for the following:…"  The findings were approved in their
entirety.

9.  On 2 June 1999, the investigation and possible relief for cause was
referred to the applicant by LTC Lip___.

10.  On 18 June 1999, civilian counsel for the applicant responded.  He
stated the applicant was an inexperienced company commander.  He never
intentionally misled any member of the battalion in regard to the printing
support given to the Special Forces unit and he did not willfully disobey a
lawful command from his battalion commander.  He handled the tasking of the
printing projects in an impulsive and ill-considered way and failed to
follow appropriate procedure, but he saw the project as an excellent
training opportunity.  If he used the figure of 200, it was an honest
mistake and, quite frankly, the number of programs actually printed was a
minor detail.  It is illogical to conclude he admitted to accepting the
projects without proper tasking but lied to his battalion commander about a
minor point that could easily be verified.  Counsel noted that the
battalion commander did not allege he ordered the applicant to cease all
work on the project immediately.  It was reasonable for him to assume he
could complete the product in light of the fact the company had already
made a commitment to the customer. Considering the high profile of the
project, it is unreasonable to assume he could not complete the project
correctly absent a direct order to stop the project.  It was counsel's
understanding that the Operation Allied Force leaflet mission was never in
jeopardy and was never delayed.  The Special Forces programs did not
interfere with the primary mission of the unit.

11.  On 25 June 1999, LTC Lip___ requested authority to relieve the
applicant for cause.  He stated he was convinced the applicant lied to him
when he asked him how many copies of the product he produced.  The
applicant never made that "mistake" concerning the amount produced when
discussing the project with his subordinates.  He stated several NCOs
advised the applicant that it was inappropriate to print the products but
he instructed his subordinates to print them anyway.  LTC Lip___ stated
that the company did not need additional training opportunities while they
were conducting 24-hour operations in support of a real world contingency.

12.  On 28 June 1999, the Group Commander, Colonel B___, endorsed LTC
Lip___'s request to relieve the applicant.  Colonel B___ stated that he
reviewed the evidence from the investigation, the documents submitted in
rebuttal by the applicant, and permitted the applicant and his attorney to
personally address him. Colonel B___ stated he was convinced the applicant
willfully and deliberately lied to LTC Lip___ when questioned about the
number of programs he ordered his company to produce.  He did not follow
the advice of senior NCOs when they attempted to advise him that the unit
should not print the products without having followed proper tasking
procedures.  He abused his position by his ordering his subordinates to
print the products as a training opportunity while they were working 24
hours a day printing millions of leaflets in support of combat operations.
Colonel B___ stated the applicant demonstrated that he did not care for the
morale, discipline and well-being of his subordinates when he ordered them
to perform a training mission in addition to the long duty hours they were
working in support of combat operations in Kosovo.

13.  On 2 July 1999, the Commander, Civil Affairs and PSYOP Command
(Airborne), Brigadier General B___, approved the proposed relief of the
applicant from command.

14.  The contested OER is a 5-rated month relief for cause report for the
period   1 December 1998 through 8 July 1999.  The rater checked the block
"no" in part IVa2 (Integrity) of the OER.  The rater checked the block "no"
in part IVb32 (Decision-making).  In part Va (Performance and potential
evaluation), the rater checked the block "unsatisfactory performance, do
not promote."  Rater comments in part Vb included, "I relieved…of his
command for two reasons.  …demonstrated he lacked integrity when he lied to
me about the number of copies of a print product he directed his print
company to produce…on two separate occasions, told me a number that was
less than the amount the company actually printed.  Secondly,…exhibited
poor judgment when he directed his subordinates to print the product after
they told him it was unauthorized and had not been tasked through proper
channels…"  Comments also included, "…is a dedicated and energetic officer.
 He faced challenges presented to the company with a mission focus."

15.  In part VIIa of the contested OER, the senior rater checked the block
"do not promote."  In part VIIb, the SR checked the block "below center of
mass do not retain."  SR comments in part VIIc included, "However, while
his company was supporting operation ALLIED FORCE, he demonstrated an
integrity problem and a lack of concern for the well being of his soldiers,
in my opinion, the two most important things a commander must possess…"  He
also commented, "He has much energy and exuberance, and seemed to be
adjusting his style and making every effort to work together with his NCOs
to run the company properly."

16.  On 16 August 1999, the contested OER was referred to the applicant for
comment or rebuttal.
17.  On 23 August 1999, the applicant responded.  He stated he had no
reason to lie about the number of the product printed.  He gave the number
200 because he believed that was the number to be printed.  He stated his
NCOs did not tell him the product was unauthorized.  The discussions they
had centered on the Special Forces Ball product, which was not printed.  He
stated that the First Sergeant's statement contained numerous inaccuracies.
 LTC Lit___ was never a party to any conversation regarding how many
"Dedication" products were run.  There was absolutely zero negative effect
on Operation Allied Force by any other printing that was executed.  No
Soldier was required to work one minute longer than scheduled to print
products during Operation Allied Force.  He did not lack concern for his
Soldiers.  He repeatedly requested to have a crew deployed forward.  Only
after persistent nagging were they able to get an acceptable number
deployed, and they were never adequately cared for while forward.  The
"Dedication" project had to be run twice, which demonstrated the need for
training.  The OER showed his rater clearly had a personality conflict with
him.  His rater never counseled him, which is required by regulation.  He
never went over his OER support form.  He never even commented on the METL
which he submitted for his rater's approval.

18.  On 23 September 1999, the applicant requested a Commander's Inquiry.

19.  On 18 October 1999, Lieutenant General (LTG) T___ reviewed the
contested OER per the applicant's request for a Commander's Inquiry and
found that no error, violation of the regulation, or wrongdoing occurred.

20.  On 25 February 2000, the applicant requested another Commander's
Inquiry based, in part, on the fact the chain of command of the 3d PSYOP
Battalion attempted to restrict his ability to gain needed information by
ordering him not to contact anyone in the battalion and company.  On 8
March 2000, the Staff Judge Advocate (SJA) denied his request as it did not
contain any new information not previously submitted to or considered by
LTG T___.

21.  The SJA indicated that he had investigated the applicant's allegation
that his former unit ordered him not to contact anyone from his former
unit.  The SJA stated he learned that Major C___, Senior Defense Counsel,
and Captain S___, Group Command Judge Advocate, discussed the issue on 28
January 2000 and agreed the applicant was to be given access to Soldiers
during duty hours provided it did not interfere with their training.  If it
did interfere with their training, then he was to be given access to them
during non-duty hours.  They also agreed that requests to interview
witnesses would be routed through Captain S___.  To date, Captain S___ had
not received any requests for witness interviews.  Based on that
information, the SJA stated that it did not appear that the chain of
command had improperly interfered with his ability to prepare his OER
appeal.

22.  On 17 May 2000, the applicant appealed the contested OER to the
Officer Special Review Board (OSRB).  He stated that the allegation that he
lied was nonsense.  The difference between running 700 programs or 200 was
inconsequential.  The majority of the work (56 of 70 man hours over a two
week period) was spent on graphic design.  The most generous estimate in
time spent actually printing 700 programs at the slowest possible speed was
14 man hours; 200 programs would have taken a little less time.  As for not
following the advice of his NCOs, he stated that two products were
involved.  Several NCOs recommended against doing the one product and they
did not do it.  No one, including his First Sergeant, gave him any advice
concerning the legality of the product that was printed.  The IO made no
distinction between the two products and it is not possible to be certain
which product the investigator was addressing.

23.  The applicant further stated that a maximum of five Soldiers were
employed to print the product in question.  About 70 man-hours were
expended in total.  At the same time, his company produced over 27 million
leaflets.  Support for that mission was never degraded.  At no time was
there ever a complaint made concerning the welfare of his Soldiers during
the production of the product.

24.  On 4 May 2000, LTC Lit___ provided a supporting statement for the
applicant's OER appeal.  He stated that he felt the IO conducted an
exceptionally thorough and impartial investigation and that the recommended
letter of reprimand was justified.  The IO adamantly defended her
recommendation of a written reprimand realizing that a stiffer punishment
could have been recommended.  LTC Lit___ stated that, in both his written
and telephonic communications to the Group Commander, he recommended only a
letter of reprimand.  At no time did the applicant communicate to him the
number of printed programs as reflected in the IO's report.  LTC Lit___
stated he was negligent in failing to point out that error to the IO and
amending her findings accordingly.  He confirmed there was no degradation
of support to Operation Allied Force due to the unauthorized print tasking.

25.  The applicant also provided two statements (one from the former
battalion executive officer and one from a Master Sergeant from the
battalion).  Both described the applicant's First Sergeant as disloyal
and/or of hearing him brag that he started the investigation that
ultimately led to the applicant's relief.

26.  On 10 August 2001, the applicant was informed that the OSRB denied his
appeal.

27.  Army Regulation 623-105 establishes the policies and procedures for
preparing, processing and using the OER.  The regulation also provides that
an OER accepted for inclusion in the official record of an officer 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 the rating officials at the time of preparation.  The
burden of proof in appealing an OER rests with the applicant.  Accordingly,
to justify deletion or amendment of a report, the applicant must produce
evidence that clearly and convincingly nullifies the presumption of
regularity.  Clear and convincing evidence must be of a strong and
compelling nature, not merely proof of the possibility of administrative
error or factual inaccuracy.

28.  Army Regulation 600-20 (Command Policy) states, in pertinent part,
that when a senior commander loses confidence in a subordinate commander's
ability to command due to misconduct, poor judgment, the subordinate's
ability to complete assigned duties, or for similar reasons, the senior
commander has the authority to relieve the subordinate commander.  Relief
is preceded by formal counseling by the commander unless such action is not
deemed appropriate or practical under the circumstances.

29.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-
11 states that applicants do not have a right to a hearing before the
ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR
may grant a formal hearing before which the applicant, counsel, and
witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had assumed command of the PSYOP Printing Company on
7 January 1999.  In his rebuttal to the relief for cause action, his
civilian counsel acknowledged that the applicant was an inexperienced
company commander.  Yet, the applicant knew enough to tell MSG P___ that
the "Dedication" product would have to be requisitioned in order to
"completely capture costs."  This appears to confirm the First Sergeant's
statement to the IO that he and other NCOs explained to the applicant the
guidelines and procedures involved with printing approved products  that
they get tasked to print or at the very least that the applicant had read
the SOP.

2.  The SOP clearly states that the Heavy Print Facility Operations officer
in charge/NCO in charge will inspect all requests for completeness to
include authorized signatures by Group and Battalion Operations approving
the tasking and assigning a tasking number.  Yet, the applicant directed
his unit to print the job without the required approval.  The applicant
acknowledges he allowed this because he "reasonably believed that a tasker
was forthcoming although he acknowledges that he never followed up."

3.  MSG P___, in his sworn statement for the IO, stated that he informally
queried the applicant about the feasibility of the applicant's unit
printing 500 programs for the Dedication to Fallen Comrades ceremony.  It
appears the applicant was aware from the beginning that the number of
programs printed was at least 500.

4.  While the applicant has given the Board his explanation of why lying to
his commander (as to whether his unit printed 200, or 500, or 700, or more
programs) "was nonsense," other reasons for his possibly lying to his
commander can be conjectured.  For example, if his commander was not
familiar with the workings of the print facility, giving the higher figure
to him could appear to his commander to be critically detrimental to the
Operation Allied Force work that had been tasked whereas the lower figure
would seem more innocuous.  Nevertheless, the evidence available to his
commander (i.e., MSG P___'s statement) indicated to him that the applicant
was aware of the higher figure and reasonably presumed that the applicant
had deliberately lied to him.

5.  To excuse the applicant's deliberate flouting of procedures he should
have known about, and that it appears he did know about, by pointing out
the Group Deputy Commander later went ahead and directed the S3 to formally
task the battalion to print the job is disingenuous.  It would have made
little sense for the Deputy Commander to generate ill-will between the two
units when the product had already been produced.  That, however, does not
offset the fact that had the request come in for formal tasking, it could
have been disapproved.

6.  To excuse the applicant's flouting of procedures by contending Army
Regulation 25-30 provided that, "…During peacetime, when units are in a
garrison status, commanders may allow limited amounts of simulated mission
training material to be printed unless otherwise prohibited," is also
disingenuous.

7.  The applicant stated, in his rebuttal to the referred OER, that he
repeatedly requested to have a crew deployed forward and only after
persistent nagging were they able to get an acceptable number deployed.
While he and his unit were stationed at Fort Bragg, technically in a
garrison status, they were performing duties in support of combat
operations in Kosovo.

8.  Counsel contends that both parties' recollection of the 14 April 1999
conversation differed to a significant degree.  The applicant understood,
when he told LTC Lip___ the program had to be reprinted and LTC Lip___ told
him not to do that again, that LTC Lip___ meant finish that one job but not
to make the same error again.  However, the IO obtained a sworn statement
from Major R___ who stated that, when LTC Lip___ asked the applicant if he
was printing something for the Special Forces conference and the applicant
stated, "yes" but had no tasker, LTC Lip___ said to the applicant, "you
don't print anything without a tasking from the Battalion S3."

9.  Counsel acknowledges that LTC Lip___ told the applicant not to do that
again, that projects had to be approved by the Group/Battalion first.  The
applicant, knowing that LTC Lip___ just told him projects had to be
approved first and knowing he had not yet received the approval, should
have asked LTC Lip___ for his specific instructions concerning that
product, i.e., "do I have permission to reprint the product?"  It appears
that at best the applicant once again displayed poor judgment in not
getting clarification of his commander's position concerning reprinting the
product.  It also appears reasonable that LTC Lip___ considered this
conversation (i.e., projects had to be approved by the Group/Battalion
first) to be the applicant's counseling.  Given that the applicant
proceeded to reprint the product without obtain clarification of LTC
Lip___'s comment, it appears LTC Lip___ properly relieved him from command
without any further counseling.

10.  It is acknowledged that LTC Lit___ confirmed that "at no time did CPT
P___ communicate the number of printed Programs" (to him, LTC Lit___) and
that such a finding by the IO was incorrect.  However, the contested OER
indicates that LTC Lip___ relieved the applicant because he lied to LTC
Lip___, not to LTC Lit___.  Therefore, it appears the error in the IO's
findings was harmless.

11.  It is noted that, in his 4 May 2000 supporting statement for the
applicant's OER appeal, LTC Lit___ stated that the IO adamantly defended
her recommendation of a written reprimand realizing that a stiffer
punishment could have been recommended.  LTC Lit___ also stated that, in
both his written and telephonic communications to the Group Commander, he
recommended only a letter of reprimand.

12.  However, it is also noted that the IO actually stated in her findings,
"… he raised doubt as to whether he was fit to continue to command his
unit...and therefore his removal from command should be considered as a
consequence of his actions.”  LTC Lit___ himself then amended the IO's
recommendation to read: "That (the applicant) receive a written reprimand
and other adverse actions as appropriate…"

13.  It is noted that the applicant stated that a maximum of five Soldiers
were employed to print the product in question and about 70 man-hours were
expended in total.  He also stated that at no time was there ever a
complaint made concerning the welfare of his Soldiers during the production
of the product. His concern for the welfare of his Soldiers should not have
been activated solely by complaints made by either the Soldiers themselves
or by other members of their chain of command.  He was their commander and
they were working           24 hours a day on a real-world mission.  While
70 man-hours may not have been a lot compared to the total hours they were
working, it was 70 man-hours they could have spent recovering from their
assigned mission.

14.  It is also noted that the contested OER contained several laudatory
comments.  Therefore, counsel's contention it included no mention of the
applicant's many accomplishments is not entirely accurate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__fne___  __lds___  __mjf___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




            __Fred N. Eichorn_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040007494                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050512                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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