RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  
	DOCKET NUMBER:  AR20070004559 


	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.  




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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, reconsideration of his earlier case to remove a Relief of Cause Officer Evaluation Report (OER) covering the period 29 May 2001 through 4 December 2001 from his record; retroactive promotion to the rank of lieutenant colonel (LTC) waiver of time in grade requirement and to be retired at the grade of LTC.

2.  The applicant states, in effect, that he is seeking reconsideration because the initial Army Board for Correction of Military Records (ABCMR) Board decision did not fulfill its purpose to correct military records when an injustice is done.  The applicant alleges that the Board’s finding that the record is incorrect but nevertheless allowing it to stand unchanged is inconsistent with the purpose of the Board.  The applicant claims that failure to correct the errors causes harm to his professional reputation, the financial value of his retirement, and is a lasting blemish on the Army.

3.  The applicant provided a 17-page self-authored chronology, 23 News Articles and Television Reports about the War in Iraq; a video cassette on the Conflicts in Afghanistan; his Relief for Cause OER; a DA Form 2627 (Record of Proceedings under Article 15, of the Uniform Code of Military Justice (UCMJ)), dated 10 October 2001; Department of the Army Inspector General (DAIG) complaint, dated 30 September 2002; the Office of The Judge Advocate General (OTJAG) complaint, dated 13 August 2004; and ABCMR proceedings, dated 28 March 2006 in support of this case.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20050011520 on 28 March 2006. 

2.  The applicant provided a 17-page self-authored chronology, 23 News Articles, and Television Reports about the War in Iraq, and a video cassette on the Conflicts in Afghanistan which were not previously reviewed by the ABCMR, therefore, they are considered new evidence and as such warrants consideration by the Board.



3.  The applicant, a former major in the Judge Advocate General's Corp, was apprehended, on 9 September 2001, at the main gate of Folk Polk, Louisiana for driving under the influence (DUI) with a blood alcohol content of .10 grams. 

4.  On 17 September 2001, the Office of the Staff Judge Advocate (SJA) at Fort Polk reported that the charges had been dismissed, because the Federal Magistrate Court declined jurisdiction over active duty military Soldiers.   

5.  On 10 October 2001, the applicant accepted non-judicial punishment (NJP) under Article 15, UCMJ for driving while under the influence of alcohol (DUI) on 9 September 2001.  His punishment consisted of forfeiture of $1,000.00 pay per month for two months.

6.  On 29 October 2001, the applicant was deployed to the Uzbekistan in support of Operation Enduring Freedom.  

7.  On 15 November 2001, the applicant's immediate supervisor Colonel Lxxx [Commander, Logistics Task Force, Uzbekistan] in an email to Commanding General, Emergency Operations Center Corp Support Command at Fort Bragg wrote "will be sending the applicant back to Bragg.  He was in a confrontation at the Joint Operations Center (JOC) regarding his attempts to professionally develop a junior CPT when over heard by COL Mxxxx's the task force commander.  The applicant's supervisor stated that the applicant was counseled to stay in his lane- attend to base ops issues- and disengage with interference in the JSOTF (Joint Special Operations Task Force) law support."  Coordination between the on-scene commander and the applicant's senior rater, who was back at Fort Bragg, resulted in the applicant's return to Fort Bragg and subsequent relief for cause.

8.  Colonel Lxxx, [Commander, Logistics Task Force, Uzbekistan] in a 17 November 2001 email wrote "He [the applicant] managed to upset an otherwise very agreeable balance with the commander, Joint Special Operations Task Force (JSOTF), [the applicant] also managed to alienate the TF 1-87 Cdr over the missing morphine report, and the commander at the Center for Health Promotion and Preventive Medicine Center (CHPPM) over the environmental problems.  He [the applicant] managed to do this mostly with uncoordinated stovepipe communications back to ARCENT [Army Central Command] about their issues.   We're not looking for Mr. Personality or someone to rubber stamp what the commander wants but I cannot tolerate someone who won't stay in his lane and is not a team player in how he does his business."


9.  The applicant's record shows that on 4 December 2001, he was relieved for cause as the XVIII Airborne Corps, Chief of Operational Law by his senior rater, the XVIII Airborne Corps SJA.  The applicant's OER in the senior rater's section indicates that he had lost confidence in the applicant's judgment, foresight and maturity, and specifically cited the DUI.  The senior, rater concluded his statement with, "Limited potential, do not promote."  The OER shows it covered 12 months of rated time for the applicant's duties serving as the Chief, Operational Law Division.

10.  Records show that Part IIe (Signature of Rated Officer) of the contested OER contains the applicant's signature and the entry 15 January 2002.  Part IId (This is a referred report, do you wish to make comments?) contains the "X" in the block no.

11.  Entries on the contested OER show that the rater placed an "X" under 
"Yes" for all of the blocks in Part IVa Army Values and the rater placed a "X" under "No" in the Decision-Making block.

12.  In Part V (Performance and Potential Evaluation (Rater)), the rater placed an "X" in the third block (Unsatisfactory Performance, Do Not Promote).  The rater also provided, in part, the following comments in Part Vb (Comment on Specific Aspects of the Performance and Potential).  Despite demonstrating outstanding technical competence, the applicant's overall performance has been unsatisfactory.  The applicant's service as the Chief, Operational Law was curtailed as directed by the relieving official, COL Hxxxxx.  The rater concurred in the relief.  The applicant's hard work and many contributions during the rating period were marred by poor judgment and questionable decision-making.  His poor judgment was demonstrated by his arrest for driving under the influence while driving a rented vehicle during a TDY to Fort Polk.  While at Fort Polk, the applicant was serving as this command's principle Judge Advocate representative overseeing the Mission Rehearsal Exercise (MRE) for a unit preparing to deploy to the Balkans.  Despite commendable organizational skills and work ethic, the applicant had not demonstrated the situational awareness, judgment or discernment necessary for positions of greater responsibility or increased levels of trust.  Limited potential, do not promote.

13.  In Part VII (Senior Rater) of the contested OER, the SR placed a "X" in the third block (Do Not Promote) under Part VIIa (Evaluate the Rated Officer's Potential to the Next Higher Grade).


14.  In Part VIIb, the SR placed her "X" in the third box which resulted in a "Below Center of Mass Retain" evaluation.  In Part VIIc (Comment on Performance/Potential), the Senior Rater (SR) made general comments regarding the applicant's performance and potential.  The SR specifically wrote:  "I have lost confidence in the abilities and judgment of [the applicant] and have accordingly directed this relief for cause.  [The applicant] began the job as my Chief of Operational Law with my full trust and with the knowledge that [the applicant] had significant prior operational law experience.  [The applicant's] DUI while at Fort Polk performing an important mission seriously undermined that trust.  As demonstrated by [the applicant's] actions, [the applicant] simply does not have the judgment, foresight and maturity required of a senior field grade Judge Advocate. Limited potential, do not promote."

15.  On 30 September 2002, in a letter to the Commander, XVIII Airborne Corps at Fort Bragg, the applicant stated that his NJP had been suspended pending demonstration of offense free conduct and that it had been filed only locally until he was detached.  The applicant argues that there had been no subsequent misconduct and that he had been denied due process in the revocation of the suspension and in the filing of the NJP on the restricted portion of his Official Military Personnel File.

16.  The acting SJA for the XVIII Airborne Corps at Fort Bragg responded that the Deputy Commander had not suspended the punishment and that no suspension was noted on the DA Form 2627, dated 10 October 2001.  
The Acting SJA stated that the applicant's 4 October 2001 correspondence had requested the NJP and GOMOR be held and not filed in his record at the NJP hearing which was not done.  The acting SJA cited Army Regulation 27-10 (Military Justice) Article 15 (Non-Judicial Punishment), paragraph 3-21e as the authority to "order punishment to be executed in such manner as the commander may direct."  He concluded that "Withholding the processing…was no longer appropriate after you received a Relief for Cause OER…"

17.  The Acting SJA further responded that he considered the questions previously answered and considered no additional response necessary.  He offered as clarification, "your relief for cause OER was a result of demonstrated poor judgment during the entire rating period and not limited to the period after you received the Article 15."




18.  On 30 April 2003, the Office of the Inspector General informed the applicant that the investigation was complete and that the contention that the filing decision on the NJP and the Relief for Cause OER were reprisals had not been substantiated.  

19.  An undated letter from the Department of Defense (DoD) IG informed the applicant that a thorough investigation had concluded that the applicant's situation did not qualify for Whistleblower status because there had been no protected communication.  

20.  In a 13 August 2004, memorandum for OTJAG the applicant attempted to involve that entity by charging mismanagement on the part of his superiors.  The OTJAG responded that its involvement would be inappropriate in that there were other regular channels through which to seek redress.

21.  The applicant's name did not appear on the list of selectees on the JAGC lieutenant colonel promotion list published 19 January 2005. 

22.  In a 17-page self authored statement the applicant claims the new evidence is based on the Board focusing upon the literal meaning of the statements made by COL Lxxxx and Col Hxxxxx in their email exchanges.  The applicant argues that the new evidence is to show that the decision to return him to Fort Bragg was actually made by the Joint Special Operations Task Force XO, COL Kxxxxx. The applicant alleges that COL Kxxxxx was most likely influenced by the alleged involvement of U.S. Special Operations Forces of the 5th Special Forces Group under his direction more than any other factor.  

23.  The applicant continues that this unit was later linked to war crimes committed by the Northern Alliance at the Qualijangi fortress prison, and the mass graves later found near Dashteleili as shown in the Video of the Conflicts in Afghanistan.  The applicant alleges that COL Kxxxxx realized he needed to silence him as a Judge Advocate General (JAG) officer who previously censured him for failing to adhere to the Geneva conventions on two occasions by engaging in combat out of uniform and unsuitability of K2 for enemy prisoners of War in technical channel reports to higher headquarters at XVIII Airborne Corps and to ARCENT. 

24.  The applicant alleges that COL Kxxxxx was aware that the applicant was familiar with both Special Operations and war crime prosecutions from his previous assignments where they served together in Europe as shown on his OERS from 1997-2000.  The applicant also contends that COL Kxxxxx might have known that the applicant had direct personal access to the legal advisor to the chairman of the JCS and the U.S. Ambassador - at- large for War Crimes.

25.  The applicant alleges that his reports on the Geneva Convention violations would have been very serious and the commander would have quickly lost containment of the situation if the applicant had remained in country.  The applicant further alleges that he had already demonstrated in the previous week that he was more than capable of sending back reports on routine matters.  The applicant continues that by sending him out of theater and shielding him from knowing what was happening on the ground, COL Kxxxxx was able to maintain operational security for his mission.  

26.  The applicant alleges that is why he and his replacement were denied access to the JOC and why the commander cut off email of the remaining army lawyers after he departed.  The applicant alleges that the damage to his own career was therefore both incidental and collateral to a much larger effort to shield and further use interrogation practices that seem all important at the time but have since been abandoned.  The applicant alleges that these practices are supported in the 23 News Stories and Television Reports he provided. 

27.  The applicant claims as a new argument that on 14 November 2001, he learned the Special Operations Forces A-Team were engaged in combat (close air support) while out of uniform without regard to rules of engagement calling for minimized collateral damage and protected targets, such as schools and hospitals and surrendered forces displaying a white flag.  The applicant adds that all of these are to one degree or another violations of the Law of War and the specifically the Geneva Conventions.  The applicant continues that this observation ruffled a few feathers because it was not how the 5th Special Forces Group (SFG) operated.  

28.  The applicant also claims that the timing of the occurrence of this event, simultaneous with the sudden reversal and decision to send him out of theater, immediately the next day suggests a relationship between the two.  The applicant contends that the reasons given for sending him out of theater were merely subterfuge.

29.  The applicant states the criteria for overturning the Board decision upon judicial review is a lack of substantial evidence or application of the arbitrary and capricious standard of the Administrative Procedures Act.  The applicant continues that as has been illustrated, the Board cannot reasonably rest its decision upon any allegation of professional misconduct alleged to have occurred in the Uzbekistan, since there is no evidence, certainly not substantial evidence, to support that conclusion.  

30.  The applicant alleges that the original decision of the Board can be challenged through the lack of substantial evidence to support wrongdoing on his part in theater.

31.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports.  Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

32.  Paragraph 9-7 of Army Regulation 623-105 states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

33.  Paragraph 9-9 of Army Regulation 623-105 states that the prospective applicant should take note of the following: (2) The basis for his or her belief that the rating officials were not objective or had an erroneous perception of his or her performance.  Note that a personality conflict between the applicant and a rating official does not constitute grounds for relief; it must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation. (Emphasis added)

34.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time the contested OER was rendered establishes the policies and procedures for the OER system.  Section I of Chapter 4 addresses evaluation principles.  Paragraph 4-1d specifically states that rating officials have a responsibility to balance their obligations to the rated officer with their obligations to the Army.  Rating officials must make honest fair evaluations of the officers under their supervision.  On the one hand this evaluation must give full credit to the rated officer for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Department of the Army selection boards and career managers can make intelligent decisions.

35.  Paragraph 4-27 of Army Regulation 623-105 requires that certain types of Officer Evaluation Reports (OER) be referred to the rated officer for acknowledgement and comment before they are sent to Headquarters Department of the Army.  Listed among those types of OER’s requiring referral are any report with negative remarks about the rated officer’s ethics in Part IVb and/or in the rating officials narrative.  Further, the regulation also requires that any report with a potential evaluation in Part Vd of “Do not promote” or narrative comments to that effect from any rating official require referral to the rated officer.

36.  Paragraph 4-11c(4) of Army Regulation 623-105 (Officer Evaluation Reporting System) provides that the rated officer signs and dates the OER before sending it to the rater.  The rated officer's signature verifies the accuracy of the administrative data in Part I (except item o), the rating officials in Part II, and the APFT [Army Physical Fitness Test] and height and weight data in Part IV.  This action increases the administrative accuracy of the OER since the rated officer is most familiar with and interested in this information.  Confirmation of the administrative data also will normally preclude an appeal by the rated officer based on inaccurate administrative data, which by the exercise of due diligence by the rated officer would have been corrected.

37.  Army Regulation 600-8-29 (Officer Promotions), currently in effect, prescribes the policies and procedures for promotion of officers on active duty.  Paragraph 7-11 specifies that officers who discover a material error existed in their file at the time they were non-selected for promotion may request reconsideration by a special selection board.  The regulation also states that requests for reconsideration will be forwarded to the Commander of the Total Army Personnel Command (PERSCOM) and reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error.  Further, officers being reconsidered are not afforded the opportunity to correspond with the special selection board and their file will be reconstructed as it should have appeared on the convening date of the promotion board that failed to select the officer for promotion.

38.  Army Regulation 15-185 (Army Board for Correction of Military Records) 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).  The ABCMR considers individual applications that are properly brought before it.  Paragraph 2-2 provides guidance on ABCMR functions.  It states, in pertinent part, that the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Paragraph 2-5 provides guidance on administrative remedies and stipulates that the ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice.  Paragraph 2-9 contains guidance on the burden of proof and states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity and the burden of proving an error or injustice rests with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his Relief of Cause OER should be removed from his record and that he should be retroactively promoted to the rank of LTC, his time in grade waived, and he be retired at the grade of LTC were carefully considered and determined to be without merit.  Contrary to the applicant's assertion the prior Board's consideration did not find “that the record is incorrect…”

2.  The applicant's record of service shows he was arrested on 9 October 2001 and accepted punishment under Article 15 of the UCMJ for DUI on 10 October 2001.  

3.  The numerous News Articles, Television Reports and a Video Cassette which describe the war situation in Iraq provided by the applicant did not substantiate his claim that the Relief for Cause OER should be removed.  This evidence does not show that the OER in question was erroneously prepared or otherwise flawed.  This evidence does not refute the fact that the applicant was arrested and punished by Article 15 for driving under the influence.  Although he asserts the real reason for his return to the States must have been to prevent him from discovering and reporting war crimes, he has failed to prove through the preponderance of the evidence that this was the case.

4.  The applicants contends that his contested OER is substantively inaccurate and an unjust evaluation of his performance and potential.  There is no evidence and the applicant has not provided evidence that shows his OER does not represent the honest and fair evaluations of the rater or that it was prepared inaccurately and is unjust.  Therefore, this claim is without merit.

5.  The applicant argues that he is entitled to promotion to LTC, Retroactive Pay and to be retired in this rank.  Evidence of record shows that the applicant was non-selected by a Judge Advocate General's Corps board in January 2005.  Absent evidence of a material error or injustice in his records, there is no basis to overturn the previous Board's decision.  Therefore, there is no basis to grant the relief requested.

6.  After a review of the available records and the independent evidence submitted by the applicant, it is concluded that the applicant has again failed to prove his case by a preponderance of the evidence.  As a result, there is an insufficient evidentiary basis to support amendment of the original Board decision in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

TSK____  JLP_____  DWT____  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 to amend the decision of the ABCMR set forth in Docket Number Docket Number AR20050011520 on 28 March 2006.




      ___     T S K__
                CHAIRPERSON

INDEX

CASE ID
AR20070004559
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.


ABCMR Record of Proceedings (cont)                                         AR20070004559



2


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508