RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           6 December 2005
      DOCKET NUMBER:  AR20050007123


      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. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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, in effect, removal of 117 pages of information
from the restricted portion (R-Fiche) of his Official Military Personnel
File (OMPF).

2.  The applicant states, in effect, his due process rights were violated
at every meaningful step in the process that led to the filing of the
documents in question in his OMPF, and he was prejudiced as a result.  He
claims that Headquarters, Department of the Army (HQDA) took the unusual
step of directing Forces Command (FORSCOM) to review the underlying Army
Regulation (AR) 15-6 investigation and to make any recommendations it
believed necessary.  This additional review completely subverted the
authority and intent of the
82nd Airborne Division Commanding General (CG), who had already taken what
he believed was the appropriate action in his case.  Finally, the applicant
indicates it is his belief that the Department of the Army Suitability
Evaluation Board (DASEB) violated its own regulation by filing this
information in the
R-Fiche of his OMPF as other administrative channels were available to the
command to properly resolve this matter.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Memorandum; AR 15-6 Investigation Findings and
Recommendations; HQDA Review Packet; XVIII Airborne Corps CG Letter of
Support to the DASEB; United States Military Academy (USMA) Superintendent
Letter of Support; and Officer Evaluation Reports (OERs) received since the

AR 15-6 investigation.

CONSIDERATION OF EVIDENCE:

1.  As of the date of his application to this Board, the applicant was
still serving on active duty at the USMA, West Point, New York, in the rank
of major.

2.  In January 2000, an AR 15-6 investigation into the climate and state of
discipline within the applicant’s unit, which was attached to the Task
Force Falcon, Kosovo Force, was initiated.  The report of investigation
(ROI) contained several findings and recommendations regarding a myriad of
command climate issues and specific acts of indiscipline in the applicant’s
unit.  The applicant was cited by name in at least three different
findings, and the IO recommended he receive a General Officer Memorandum of
Reprimand (GOMOR) and/or other adverse administrative actions for
dereliction of duty, perpetuating a command climate that allowed Soldiers
to violate the rules of engagement, and for conduct unbecoming an officer
and a gentleman.

3.  The AR 15-6 approval authority approved the findings and
recommendations of the IO except that he disapproved all recommendations
pertaining to disciplinary action.  He further recommended the commander
consider appropriate disciplinary action in response to each substantiated
allegation of misconduct.

4.  On 17 May 2000, the CG of the 82nd Airborne Division issued the
applicant a GOMOR.  The CG reprimanded the applicant for his failure to
properly supervise his subordinate Soldiers in the Vitina area of
operations in Kosovo during the period December 1999 through January 2000.


5.  On 22 May 2000, the applicant requested the CG, 82nd Airborne Division,
direct the GOMOR be filed in his local file.  In his request, the applicant
stated he was deployed to Kosovo and given the mission to establish a safe
and secure environment in the area.  Inherent in his mission was the
responsibility to fill the void created by the absence of any police,
legal, or civil administrative infrastructure.  He stated that he
understood the stated mission and intent, and he understood the
complexities of the tasks he was assigned.  He stated he knew they had been
assigned the most volatile area in the Battalion sector and that there
would be a significant amount of friction between the Serbian and Albanian
populations.

6.  In his appeal, the applicant further stated that his unit’s task was to
maintain a secure environment for both communities.  Under these
conditions, the applicant claimed he performed his duties to the absolute
best of his ability.  He stated that during the execution of his mission,
members of his command were alleged to have mistreated local Albanian
Nationals.  Upon notification of these incidents, he conducted a
commander’s inquiry that provided the information indicating that the
allegations of mistreatment may have had merit.  He stated that as soon as
he discovered any evidence of mistreatment in his command, he investigated
it to determine its validity, immediately stopped it and informed his chain
of command.  He stated that this did not relieve him of the responsibility
for the actions of his subordinates; however, it does demonstrate his
desire to correct a problem and take ownership of the wrongdoings taking
place in his company.
7.  The applicant also indicated in his appeal that as a result of the
experience, he became better equipped to command in the Kosovo type of
environment in the future.  He stated his desire was to continue to serve
the United States Army as long as he was healthy enough to do so, and his
long-term goal was to command a battalion.  He also indicated that he
believed he had the potential to further contribute to the United States
Army at higher levels of staff and command.  He concluded by stating that
if the GOMOR were filed in his OMPF, it could prevent him from capitalizing
on the experience and maximizing his potential for future service as an
Infantry officer, and he respectfully requested local filing of the GOMOR.


8.  The 82nd Airborne Division CG, after considering the applicant’s
appeal, directed the GOMOR be filed in the applicant’s local file.

9.  The Officer Evaluation Report (OER) issued to the applicant for the
period
23 June 1999 through 22 June 2000, which was signed on 11 July 2000,
subsequent to the completion of the AR 15-6 investigation and issue of the
GOMOR, evaluated him as a company commander in the 82nd Airborne Division,
which included his time in command in Kosovo.

10.  The applicant’s battalion commander, a lieutenant colonel, was the
rater on the OER ending 22 June 2000.  He placed the applicant in the first
block (Outstanding Performance, Must Promote) in Part V (Performance and
Potential Evaluation), and commented that the applicant was the top overall
company commander in the battalion.  The applicant’s brigade commander, a
colonel, was the senior rater on the report.  The senior rater placed the
applicant in the first block (Best Qualified) of Part VIIa (Evaluate the
Rated Officer’s Promotion Potential to the Next Higher Grade).  The senior
rater commented that the applicant was an exceptionally gifted leader,
whose performance of duty could only be described as brilliant.  He further
stated the applicant had unlimited potential to serve in positions of
greater responsibility and demonstrated every attribute sought in the
future leaders of the 21st Century.  This OER was an Above Center of Mass
report.

11.  On 8 September 2000, the Chief of Staff, Army (CSA) requested the
FORSCOM commander review the concerns and other factors suggested by the AR
15-6 investigation and take appropriate corrective actions.

12.  The FORSCOM commander tasked the CG, XVIIIth Airborne Corps to conduct
the review directed by the CSA.  On 12 September 2000, the CG, XVIIIth
Airborne Corps appointed a team consisting of a major general (MG),
brigadier general (BG), three colonels, and a lieutenant colonel judge
advocate general (JAG) officer to conduct this review.

13.  On 6 November 2000, the FORSCOM commander submitted his report to the
CSA.  He stated that the crimes and abuses outlined in the initial AR 15-6
investigation were the direct result of failures in leadership and a lack
of personal discipline within the applicant’s company, but particularly
within the 1st platoon of that unit.  He further stated that appropriate
action had been taken against the responsible leaders; however,
subsequently several had received favorable assignments or selections for
schooling or promotion.  He recommended that all of these favorable
personnel actions be reviewed and indicated he had forwarded a memorandum
to the CG, Total Army Personnel Command (PERSCOM), requesting a review by
the Department of the Army Suitability Evaluation Board (DASEB).

14.  On 28 January 2001, the applicant submitted a rebuttal to DASEB
regarding the referral of unfavorable information on him.  In his rebuttal
he explains his position on each of the incidents cited in the AR 15-6
investigation.  He also stated that the investigation was not an accurate
representation of the situation in Kosovo and failed to consider the
numerous allegations of abuse made by local Albanians.  He further stated
that the investigation failed to properly depict that he investigated all
reports of misconduct, and the IO failed to discover any misconduct that
had not already been reported to higher headquarters.  He further states
that the AR 15-6 investigation had been reviewed by his chain of command,
and the responsible commander determined the appropriate punishment was a
GOMOR that would be filed in his local file.  He stated that it would be
unfair and unjust for the DASEB to recommend anything be filed in his OMPF
for the same incident for which he had already been admonished by his chain
of command.

15.  On 30 January 2001, the CG, XVIIIth Airborne Corps, who was the CG of
the 82nd Airborne Division at the time of the incident, and who is now the
FORSCOM commander, provided a memorandum to the DASEB in support of the
applicant.  He stated that as the division commander, he withheld to
himself the disciplinary authority over officers involved in the incidents
outlined in the AR 15-6 investigation.  He stated that he carefully and
fully considered the entire multi-volume ROI prior to making a decision
with respect to the applicant.

16.  In his memorandum to the DASEB, the then XVIIIth Airborne Corps CG
further stated that in order to properly consider the ROI, he asked the IO
to travel
from Germany to Fort Bragg to brief him personally on his findings.  The IO

spent several hours with him in order to fully explain the findings and
recommendations.  He also indicated that the ROI was just one of many
sources of information he considered concerning the unit, the Soldiers,
their performance, the reported incidents, and the actions of the company
commander (the applicant).  He stated that he twice spent time in the unit
on the ground in Kosovo and personally observed its activities.  He stated
that he witnessed the applicant’s company on patrols in action and saw the
extremely difficult and challenging circumstances they endured during this
early and volatile stage of the Kosovo operation.  He further indicated a
news journalist that shadowed the unit for a series of articles rightly
reported that had it not been for the professional, judicious, and even-
handed manner in which the applicant’s company conducted its peacemaking
duties, the entire area would immediately revert to an absolute cesspool.

17.  The then CG, XVIIIth Airborne Corps also indicated that he received
reports from the applicant’s chain of command, to include the Task Force
Commander, a BG, praising the applicant’s performance despite the demanding
and risky environment.  He considered the judgments and opinions of the
Task Force Commander, 1st Infantry Division Commander and his staff, the V
Corps Commander and several comments from members of the United States Army
Europe CG’s staff.  Many of the laudatory comments concerning the
applicant’s performance came even in the aftermath of the incidents and
investigation.

18.  The then CG, XVIIIth Airborne Corps further stated that after a
careful review of the ROI and all other pertinent information, he
reprimanded the applicant because he determined the applicant could and
should have exercised stronger leadership, during a brief period of time in
early January, to identify and then correct the inappropriate behavior of a
handful of the unit’s Soldiers.  However, the applicant’s faults were acts
of omission, ignorance and inexperience.  The CG stated he was confident
that had the applicant known of the misconduct, he would have corrected the
situation.  He further stated that his study of the matters bearing on his
decision convinced him that a small number of Soldiers in the applicant’s
command acted inappropriately and criminally during a brief snapshot in
time, eleven days, compared to the balance of a six month deployment
characterized by overwhelming mission success.

19.  The then CG, XVIIIth Airborne Corps concluded his memorandum to the
DASEB by stating that it was his judgment that a permanent and lasting
action against the applicant would serve no useful purpose for the
institution of the Army or the individual.  Accordingly, he directed the
GOMOR he issued be filed locally.  He further stated that he took his
obligation as a commander seriously.  He endeavored to fully understand the
facts and circumstances surrounding the incidents of the ROI, and despite
significant media attention and the knowledge his decision might engender
future scrutiny, he decided on the adverse action against the applicant
that he continued to believe was proper and just.

20.  On 11 April 2001, the DASEB issued a memorandum to the Commander,
PERSCOM, indicating that the Director, Military Personnel Management
(DMPM), Officer of the Deputy Chief of Staff, Personnel (ODCSPER) directed
that the memorandum, along with the attached documents, be included in the
R-Fiche of the applicant’s OMPF.  The memorandum further stated the action
constituted an entry of unfavorable information in the OMPF of the
applicant that could impact on favorable personnel actions and should be
treated accordingly.  The summary of unfavorable information stated, in
pertinent part, that an investigation into the command climate of the
applicant’s unit found the unit leaders failed to take appropriate action
based on reported allegations of Soldier misconduct to include excessive
use of force.  The investigation specifically found the applicant was
derelict in his duties in that he failed to properly investigate
allegations of criminal misconduct/excessive use of force within his unit;
thereby perpetuating a volatile situation leading to an unhealthy command
environment.  It further indicated the specific details of the
investigation were included in the ROI and with findings attached to the
memorandum.  The contents of the documents filed in the applicant’s OMPF
included the
AR 15-6 ROI with findings and recommendations and the applicant’s rebuttal
packet.

21.  The applicant’s record shows the applicant received a civilian
education academic evaluation report for the period 23 June 2000 through 27
July 2001, and four OERS between 28 July 2001 and 23 April 2005.  All of
these OERs were Above Center of Mass reports.

22.  On 9 May 2005, the Superintendent of the USMA, a lieutenant general,
who is currently the applicant’s supervisor, provided a memorandum of
support to the Board.  He states that while stationed as a company
commander in Kosovo, his aide (the applicant) was the company commander of
a criminal, a renegade squad leader who raped and killed an 11 year old
local national.  He further states that through some botched staff work and
media pressure, the applicant was denied due process.
23.  The USMA Superintendent further states that as a result of this flawed
process, a substantial amount of information regarding the incident was
filed in the R-Fiche of the applicant’s OMPF.  However, the memorandum of
support provided by the then XVIIIth Airborne Corps CG, which clearly shows
the command intent and personal assessment of the applicant as a leader,
was not filed, and he can now add additional general officer emphasis.  He
further states that the applicant is a star field grade officer who is
selfless, dedicated, humble, personable, amazingly fit and proficient, and
it is past time to purge his OMPF.

24.  The Superintendent of the USMA further states that despite the
applicant’s appeal and the recommendation of the then XVIIIth Airborne
Corps CG that no further action be taken, the DASEB decided to file a
paragraph of unfavorable information, the executive summary of the AR 15-6
investigation, and the applicant’s appeal in the R-Fiche of the applicant’s
OMPF, a total of 117 pages in the applicant’s OMPF.  However, it did not
file the XVIIIth Airborne Corps CG memorandum of support.  He indicates
that the XVIIIth Airborne Corps CG was the general officer convening
authority and responsible for adjudicating the findings of the AR 15-6
investigation, had first hand knowledge of the applicant and the proper
perspective on just consequences.  This commander administered a GOMOR,
which was filed locally.  He further states that with this material on
file, the applicant’s promising career is likely finished.  He states two
fine Soldiers associated with this tragedy also had R-Fiche information on
file and retired prematurely.  One of them was on the brigade command and
colonel’s lists, but could not get confirmed.  He states the Army can not
afford to lose the applicant through a similar error.  He concludes by
strongly urging the Board to adhere to the CG’s original intent and remove
all documentation pertaining to the incident from the applicant’s record.
He adds a personal
hand-written note that states “Need your help to save this great young
officer”.

25.  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.  It also contains policy
that ensures that unfavorable information that is unsubstantiated,
irrelevant, untimely, or incomplete is not filed in individual official
personnel files, and that the best interests of both the Army and the
Soldiers are served by authorizing unfavorable information to be placed in
and, when appropriate, removed from official personnel files.

26.  Paragraph 2-3 of the unfavorable information regulation contains
guidance on the DASEB.  It states, in pertinent part, that the DASEB
recommends to the DMPM, ODCSPER, the filing of unfavorable information in
cases in which the recipient has not satisfactorily explained that
information after being given an opportunity to do so. The DASEB will not
recommend filing of unfavorable information that has not been referred to
the recipient, even if such filing would be otherwise permissible under
this regulation.  The DASEB is responsible to review and evaluate evidence
presented to support appeals for removing unfavorable information from the
performance portion of the OMPF.  It also is authorized to revise, alter,
or remove from the OMPF unfavorable information covered by this regulation
that is determined upon appeal to be unjust or untrue, in part or in whole.


27.  Chapter 6 (Organization and Procedures of the DASEB) of the
unfavorable information regulation contains guidance on DASEB
responsibility.  Paragraph
6-2 contains guidance on adverse suitability information.  It states, in
pertinent part, that normally cases referred to the DASEB are the result of
revocation or denial of the security clearance of senior enlisted members
(E-6 and above), officers, and warrant officers.  However, commanders may
also refer cases to the DASEB, but only when resolution of the case is not
practical under provisions of other regulatory policies and procedures.

28.  Paragraph 6-4 of the unfavorable information regulation provides
guidance on DASEB filing determinations.  It states, in pertinent part,
that the DASEB will review and consider the recipient's response or
rebuttal to the proposed filing of a case summary of unfavorable
information in his or her OMPF.  The DASEB will adequately document its
findings and conclusions.  It further stipulates that the DMPM, on behalf
of the DCSPER, is the decision authority for filing unfavorable information
in the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that he was denied due process in connection with
the filing of the documents in question in his OMPF was carefully
considered.  It appears the DASEB properly provided the applicant the
documents in question prior to making a filing recommendation and
considered the applicant’s rebuttal packet prior to making its filing
recommendation.  Further, DMPM had the authority to direct the filing of
the documents in question in the OMPF.  As a result, it does not appear the
applicant was denied due process during the DASEB processing of his case.

2.  However, a careful review of this case raises equity questions in
regard to the documents in question being filed in the applicant’s OMPF
that should be addressed at this time.  The evidence of record confirms the
appropriate commander (CG, 82nd Airborne Division), after reviewing the AR
15-6 ROI and all relevant and associated factors, determined it was
appropriate to issue the applicant a GOMOR and to file this reprimand in
the applicant’s local file.  This commander, who is now the FORSCOM
commander provided a memorandum to the DASEB when he was the XVIIIth
Airborne Corps CG, which fully explained his logic for the action he took
in the applicant’s case, and in which he indicated that he still believed
his action was proper and just.

3.  The OER the applicant received for the time he served as a company
commander in the 82nd Airborne Division, which included the deployment to
Kosovo, was an Above Center of Mass report.  Further, all four of the OERs
he has received since have all been Above Center of Mass reports.  This
indicates the applicant is a top level performer with great potential for
service to the Army at higher levels of responsibility.  The level of the
applicant’s performance is further corroborated by the remarks made by the
Superintendent of the USMA, the applicant’s current supervisor, in his
memorandum of support to the Board.  In this memorandum, he states that it
would be a disservice to the Army to lose an officer with such great
potential.

4.  The facts of this case confirm the applicant had leadership lapses
during
a very short period of time while serving in Kosovo, as confirmed by the
then XVIIIth Airborne Corps CG, now FORSCOM commander, who was the CG, 82nd
Airborne Division at the time.  Considering the applicant’s outstanding
performance prior to and since this short period of time, during which he
had lapses in judgment during a very difficult deployment, it would be
unfair for him to have the stigma of these events dictate his future in the
Army.

5.  Further, allowing the continued filing of these documents in the
applicant’s OMPF could very well result in the Army being deprived of the
benefit of his service over the long term.  Therefore, given the strong
support from two senior Army leaders (Superintendent of the USMA and
current FORSCOM Commander), and based on the applicant’s outstanding record
of service, it would serve the interest of equity and justice to remove the
documents in question from his OMPF at this time.

BOARD VOTE:

___BPI__  ___DWS_  __EEM__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief.  As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected by removing all the documents in question from his OMPF.

2.  To ensure this decision results in no unintended harm to the individual
concerned, following completion of the administrative corrections directed
herein, the Record of Proceedings and all documents related to this appeal
will be returned to this Board for permanent filing.  The Record of
Proceedings and associated documents will not be filed in his OMPF.




            ____Bernard P. Ingold______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050007123                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/06                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |134.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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