RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                 02 MARCH 2006
      DOCKET NUMBER:         AR20050006408


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. Jerome Pionk                  |     |Member               |
|     |Ms. Peguine Taylor                |     |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:

1.  The applicant requests the removal of any reference to a referred
report and removal/redaction of comments from his rater and senior rater
(SR) in the Officer Evaluation Report (OER) covering the period from 1 May
2001 through 30 April 2002 and the removal of all documents associated with
his rebuttal and appeals. He also request that he be promoted to the rank
of lieutenant colonel (LTC).

2.  The applicant states, in a 20-page appeal, in effect, that the
investigation conducted in accordance with Army Regulation (AR) 15-6 was
flawed and the substantiation of the findings of that report were flawed as
well and resulted in an unjust characterization of his performance by his
rater and SR in the contested report, as well as administrative errors.  He
goes on to state that AR 20-1 was violated, in that information from an
Inspector General (IG) report was improperly used by the investigating
officer, that his SR improperly substantiated the findings of the AR15-6
investigation, that the allegation against him was filed outside the
timeframe of appeals, that the investigation was flawed because the
investigating officer failed to interview all witnesses, that he failed to
answer all questions outlined in the appointment letter, and that he failed
to present all known and relevant facts.  He also contends that he was
threatened not to appeal, that his commander’s methodology of resolving
issues was flawed, and that the contested OER contradicts the counselings
given by his chain of command and his ratings.  He further states that he
should be promoted to the rank of LTC.

3.  The applicant provides a 20-page appeal along with enclosures of Tabs 1
through 24 that are outlined in an Appeal Table of Comments.

CONSIDERATION OF EVIDENCE:

1.  He was commissioned as a United States Army Reserve second lieutenant
on 4 June 1988 and entered active duty as a quartermaster branch officer on
3 September 1988.  He was promoted to the rank of first lieutenant on
3 September 1990, to the rank of captain on 1 January 1993 and to the rank
of major on 1 May 1999.

2.  On 17 May 2002, while the applicant was serving as a commander of a
unit in The Netherlands, an investigating officer was appointed to conduct
an investigation into an allegation that the applicant had improperly used
race as the basis to select his Equal Opportunity Leader (Noncommissioned
Officer).  The investigating officer was a lieutenant colonel and a
commander of a unit similar to the applicant’s.  The investigating officer
opined that the applicant had improperly used race as a basis to select his
Equal Opportunity Leader (EOL) in violation of Army Regulation 600-20,
paragraph 6-3.  In the process of his investigation he reviewed previous
investigations/assessments and opined that while he could find no evidence
of illegal, unethical or immoral behavior on the part of the applicant, his
ability to properly command his unit was in serious jeopardy.  He
recommended that the applicant be reassigned.

3.  The appointing authority, the applicant’s rater, approved the findings
with comments indicating that he did not believe that the applicant
inappropriately used race as a basis for his Equal Opportunity
Representative selection; however, the comments made by the applicant in
relation to and during the selection betray a discriminating attitude, were
inappropriate and could legitimately be perceived as discriminatory in
nature.

4.  In response to the Equal Opportunity complaint, the applicant’s
commander and rater indicated that the complaint had been substantiated and
that the applicant would receive a letter of reprimand and reassignment as
quickly as possible.

5.  Meanwhile, on 7 May 2002, the applicant received an annual OER covering
the period from 1 May 2001 through 30 April 2002, evaluating him as a
commander.  The rater gave the applicant maximum ratings and in Part V,
under Performance and Potential Evaluation, he made comments to the effect
that a formal EO complaint was filed against the applicant and an
investigation conducted under AR15-6 found that the complaint was founded.
The rater indicated that he substantiated the finding and as such was
required to indicate that he does not support EO.  He went on to state that
the applicant had a lapse in judgment when he made the comment that was
perceived as discriminatory; however, he (the rater) did not believe that
the applicant discriminates based on race, color, religion or national
origin.

6.  The SR, a brigadier general, gave the applicant a “Best Qualified”
rating and indicated that he rated 48 officers in the grade of major.  He
placed the applicant in the “Center of Mass” in his profile and recommended
that he be promoted to the rank of lieutenant colonel when eligible.  He
also included in his comments that the applicant’s lapse of judgment was
troubling but he believed it to be an isolated incident.  He further
commented that the good he and his unit have accomplished and his potential
for continued contributions should not be overlooked as a result of this
mistake.

7.  The report was referred to the applicant and he responded to the effect
that he had made a statement that in his previous units the EO
representatives were either black or female and the comment was relayed out
of context.  He also stated that he fully agreed that his statement would
have been better left unsaid and that it provided an avenue for
misunderstanding.  He further stated that his intent was benign, but the
results were troubling.  He had failed to instill the correct
interpretation of his experience and that he understood the error and
believed that it would strengthen his resolve and ability to be a better
leader of Soldiers and other members of the Department of Defense family.

8.  There is no evidence in the available records to show that the
applicant ever received a letter of reprimand or that he requested a
commander’s inquiry regarding the contested OER.

9.  In August 2002, he was reassigned to Kuwait for duty as an automated
logistics officer.  He served 14 months in Kuwait and was transferred to
Fort Carson, Colorado, in November 2003.

10.  On 26 May 2004, after being non-selected for promotion to the rank of
lieutenant colonel (LTC) for the first time, the applicant submitted an
appeal of the contested OER to the Officer Special Review Board (OSRB)
contending that the AR15-6 investigation was flawed and that the results of
that investigation pervasively effected his rater and SR’s comments.  He
also contended that the investigating officer violated Army Regulations by
revealing confidential IG information that was used as a basis for adverse
actions (contested OER).  The OSRB opined that it would be inappropriate to
over rule the findings of the  AR15-6 investigation, given the
circumstances of the case and the fact that the applicant did not appeal
the findings and recommendations.  The OSRB also opined that he had not
provided sufficiently convincing evidence to show that the contested OER
was not accurate and that it did not adequately reflect his performance.
The OSRB denied his appeal.

11.  On 12 September 2005, the applicant was notified that he was again non-
selected for promotion to the rank of LTC; however, he was selected for
Selective Continuation (SELCON) on Active Duty up to 24 years of active
commissioned service if he chose to accept it.  The applicant elected to
accept the SELCON option.

12.  A review of the evidence submitted by the applicant reveals that in
July 2001, the applicant’s commander directed a climate assessment of the
applicant’s unit be conducted by the command EO office.  The results of
that assessment indicate that the applicant had made numerous inappropriate
comments on several occasions.  The EO official recommended that the
commander communicate to the applicant that the behavior would not be
tolerated, that a sensing session be conducted, that the applicant be
provided with additional training to improve people skills, and that the
applicant make an acknowledgement of error to the troops of his command.

13.  On 1 August 2001, an IG Assistance Visit determined that there was an
adversarial relationship between the applicant and his assigned military
personnel and that the leadership/command climate was oppressive.

14.  The applicant’s commander also appointed a warrant officer from
another unit to conduct an informal investigation during the period of 13 –
16 August 2001 regarding EO allegations at the applicant’s unit.  The
investigating officer found that the unit climate was very tense and
presented a hostile atmosphere for both Soldiers and Host Nation personnel.


15.  A review of the applicant’s Official Military Personnel File (OMPF)
shows that he had previously received an annual report covering the period
from 1 May 2000 through 30 April 2001 evaluating him as a commander of the
same unit as the contested report.  His SR (a brigadier general) indicated
that he senior rated 4 officers in the grade of major.  The applicant
received maximum ratings and a center of mass placement on the SR’s
profile.

16.  Army Regulation 623-105 establishes the policies and procedures for
the OER system.  Paragraph 3-57 and 6-6 provide than an OER accepted by
Headquarters, Department of the Army, and included in the official record
of an officer, is presumed to be administratively correct, and to have been
prepared by the properly designated rating officials at the time of
preparation.  Requests that an accepted OER be altered, withdrawn or
replaced will not be honored.  An exception is granted only when
information which was unknown or unverified when the OER was prepared is
brought to light or verified and the information is so significant that it
would have resulted in a higher or lower evaluation, had it been known at
the time the OER was prepared.  Paragraph 3-24 provides that each report
will be an independent evaluation of the rated officer for a specific
rating period and will not refer to prior or subsequent reports.  Each
report must stand alone.

17.  Army Regulation 20-1, Inspector General Activities and Procedures,
provides, in pertinent part, that IG records will not be used as the basis
for adverse actions against individuals by directing authorities or
commanders, except when properly authorized by officials specified in that
regulation.  IG information may be released to Department of the Army
investigators (that is, investigating officers, report of survey officers,
Criminal Investigation Division (CID) and Military Police Investigators)
that are performing investigations under Army Regulations and outside IG
channels.

DISCUSSION AND CONCLUSIONS:

1.  The contested report appears to represent a fair, objective and valid
appraisal of his demonstrated performance and potential during the period
in question.  Therefore, there is no basis for altering the contested
report by deleting the comments regarding the EO complaint.

2.  The applicant’s assertion that the information contained in IG records
was improperly used to take adverse action against him has been noted and
appears to be without merit.   The AR15-6 investigating officer reviewed
the IG investigation and other investigations to determine if the command
climate had changed.  He had no authority to take any action against the
applicant in his role as an investigating officer and it appears that his
use of a portion of a redacted IG report that related to the command
climate was appropriate under the circumstances.

3.  It is also reasonable to presume that even if the investigating officer
had not used or been provided a copy of the IG investigation in the conduct
of his investigation, the appointing authority would already have been
aware of the contents of the IG report, given his position as the
commander.

4.  It is also noted that while the commander could have given him a
reprimand and relieved him of command, he did not do so.  Instead, he gave
the applicant a maximum report and provided an explanation that adequately
explains the substantiated EO complaint.  Likewise, his SR also gave him a
center of mass rating, recommended him for promotion and adequately
explained the EO complaint.

5.  The applicant’s assertion that he feared retaliation/reprisal if he
appealed the actions of his commander at the time have been noted; however,
given the report he received vice the report he could have received, his
contention appears to be without merit.

6.  The applicant’s contention that his SR did not rate 48 majors and that
the entry should be changed or deleted has been noted; however, he has
failed to show through evidence submitted or the evidence of record that
that entry is incorrect.  Therefore, lacking such evidence there is no
basis to change that entry.

7.  The applicant’s contention that the AR15-6 investigation was flawed,
inaccurate and should not have been substantiated has been noted and found
to be without merit.  It appears that the appointing official (the
applicant’s commander and rater) was satisfied that the investigation was
properly conducted in accordance with the applicable guidelines.
Furthermore, the applicant could have rebutted the findings of the
investigation at the time and yet did not do so.

8.  The evidence suggests that there was a problem in the applicant’s unit
and as the commander, it was his responsibility to ensure a healthy command
climate.  However, none of the investigations that were conducted either
formally or informally suggested that such was the case.  In any event, the
applicant accepted responsibility for his actions in his response to the
referred report.

9.  His assertion that the comments he made, although misunderstood as they
were, should have been left unsaid, goes to the heart of the issue in this
matter.  As an officer and commander, he had a responsibility to be
sensitive about such matters and set the example.  It appears that he
failed in that instance.

10.  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 has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WP__  __JP____  ___PT___  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.






                                  ______William Powers_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050006408                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060302                                |
|TYPE OF DISCHARGE       |N/A AC Soldier on AD                    |
|DATE OF DISCHARGE       |N/A AC Soldier on AD                    |
|DISCHARGE AUTHORITY     |N/A AC Soldier on AD                    |
|DISCHARGE REASON        |N/A AC Soldier on AD                    |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.111.000|193/eval rpt                            |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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