IN THE CASE OF:	  

	BOARD DATE:	  13 May 2008

	DOCKET NUMBER:  AR20080002836 


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal from his military records a "Relief for Cause" Officer Evaluation Report (OER) for the period ending 23 March 2006. 

2.  The applicant states, in effect, that the OER was based on an improperly conducted 15-6 investigation which the battalion commander failed to properly execute and/or authenticate.  The investigation did not attempt to determine the facts and resulted in erroneous conclusions based on information provided by Soldiers who were not assigned to his company.  Additionally, the applicant states that the Staff Judge Advocate [Chief, Administrative Law] [initially] noted in his legal review of the 15-6 investigation "that the recommendation to remove individuals from leadership positions on the basis of unsubstantiated allegations of misconduct is not supported by law or regulation."

3.  The applicant provides copies of a 15-6 investigation, a General Officer Memorandum of Reprimand (GOMOR), rebuttal memorandum with annexes, request for delegation of authority, freedom of information documents, character references, and the applicant's subsequent OER's.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was a captain, Medical Service Corps, serving on active duty.

2.  A Report of Proceedings by Investigating Officer/Board of Officers (DA Form 1574) indicates that an investigating officer (IO) was appointed on 21 September 2005 to investigate alleged misconduct by the applicant.  This investigation was concluded on 19 October 2005.  The IO found that the applicant compromised or appeared to have compromised the integrity of the command; that he caused actual or perceived partiality or unfairness; or that he caused actual or clearly 


predictable adverse impact on discipline, authority, morale, or the ability of the 
command to conduct its mission.  The IO recommended that the applicant receive a senior rater letter of reprimand; be counseled by his rater on the proper means of discussing and identifying the types of command relationships; be directed to take corrective actions to avoid such improprieties in the future, including a formal apology to the command; and receive corrective training on proper relationships between Soldiers.  The IO further opined that the evidence was insufficient to support relieving the applicant for cause; however, he did recommend that the applicant be placed into a leadership probationary status and immediately relieved for cause should he repeat his misconduct.  The IO signed the report.  The name of the appointing authority is typed on the report; however, the appointing authority did not indicate his action or sign the report.  

3.  On 20 October 2005, the Chief, Administrative Law, reviewed the 15-6 Investigation for legal sufficiency.  He found that the investigation complied with all legal requirements; that sufficient evidence supported the findings; and that the recommendations were consistent with the findings.  He also noted that the IO's recommendation to remove individuals from leadership positions on the basis of unsubstantiated allegations of misconduct is not supported by law or regulation.  On 4 November 2005, he rewrote his review deleting his notation.

4.  On 20 January 2006, the commanding general wrote a GOMOR for the applicant.  It stated that the applicant had permitted a personal friendship with a subordinate officer in his unit to create an appearance of impropriety, resulting in a wide-spread perception among the members of his unit, both officer and enlisted, that that relationship exceeded professional bounds and resulted in inappropriate favoritism.  He was admonished to abstain from similar conduct in the future. 

5.  On 14 February 2006, the applicant rebutted the GOMOR.  He stated that he had not believed his actions at the time were wrong or improper, but did acknowledge, in hindsight, how some of his actions could have led to incorrect perceptions.  He further stated that he was not made aware that such perceptions of impropriety or favoritism existed within the unit until the 15-6 investigation had begun, thereby not affording him the opportunity to correct his actions.  The applicant also stated that he was responsible for any perceptions of impropriety or favoritism that may have existed and that he should have taken additional steps to avoid such perceptions if in fact they did exist.  He contended that that the evidence as compiled by the 15-6 investigating officer did not support a conclusion of either impropriety, favoritism, or an effort to circumvent 

fraternization policies.  The applicant further contended that the appointing authority was prejudicial and made an orchestrated attempt to guide the outcome of the 15-6 investigation to support his relief for cause.  The applicant also stated that he was held to a higher standard than that placed on his superiors.

6.  On 6 February 2006, in a memorandum provided by the applicant, the Flight Operations Officer, a captain, wrote his professional opinion of the applicant.  He stated, in effect, that the applicant, during his time as commander of the 557th Medical Company, was "untouched by most officers and Soldiers in the Army."  He further stated that he exemplified the Army values to the highest degree and was a model officer and leader to be emulated at every level.

7.  In an undated Memorandum for Record, the then First Sergeant for the 557th Medical Company, stated that during his tenure as the company's first sergeant, he had served under two different company commanders.  He stated that the applicant's leadership skills along with a vast knowledge of military operations played a significant role in the transforming of the 557th Medical Company.  The former first sergeant considered himself fortunate to have had the applicant appointed as his company commander.  The former first sergeant also discussed the 15-6 investigation [of which he was also a subject].  He opined that the investigation did not support any pattern of misconduct and that the investigation's integrity may have been tainted by statements obtained from other Soldiers in the command.   

8.  The contested OER is a nine-month relief for cause OER covering the period ending 23 March 2006 for duties as a company commander of a ground medical evacuation company.  This OER was authenticated in Part II (Authentication) by the rated officer (the applicant), the rater, and the senior rater on 18 April 2006.

9.  The applicant received ratings of “YES” in all seven elements of Performance Evaluation – Professionalism – Character in Part IVa. (Army Values).  The applicant received ratings of "YES" in all fifteen elements of Leader Attributes in Part IVb.  Part IVc (Army Physical Fitness Test (APFT)) indicates that he passed the APFT and was within the height and weight requirements.

10.  In Part V, (Performance and Potential Evaluation) (Rater) the applicant's rater evaluates his performance as unsatisfactory.  The rater stated, in part, that the applicant was relieved from command for permitting a personal friendship with one of his platoon leaders to create an appearance of impropriety that resulted in a wide-spread perception among the officers and enlisted members of the unit, that the relationship exceeded professional bounds and resulted in inappropriate favoritism.  
11.  In Part VII, (Senior Rater) the applicant's senior rater evaluated the applicant's potential for promotion as "Do Not Promote."  The senior rater stated that the applicant was relieved from command and given a GOMOR for poor 
judgment and questionable leadership.  He further stated that the applicant should not be selected for further military education, promotion, or command.  The applicant should be retained on active duty as an aeromedical evacuation pilot or as a staff officer to capitalize on his significant potential and experience.  No box was checked in Part VIIb (Potential compared with Officers senior rated in the same grade). 

12.  On 20 February 2007, in a Memorandum for Record provided by the applicant, First Lieutenant S____ recommended removal of negative records from the applicant's Official Military Personnel File (OMPF).  As an officer serving under him throughout the duration of the investigation, of which she was a part, she contended that she was in a position to relay the facts clearly in regard to the applicant's conduct.  She stated that the applicant was her commander and immediate supervisor and a friend to her entire family.  She writes a fairly detailed account of events that occurred in the unit during her period of assignment pointing out how the unit underwent difficulties with its reorganization and subsequent training events.  She, in effect, contended that the battalion commander held double standards and was unfair towards herself and the applicant.  She also states that the intent of the 15-6 investigation was not to seek the truth but, rather, to relieve the applicant of his command.  As a result, the former first sergeant was laterally promoted to master sergeant, she was to be admonished for allowing negative perceptions, and the applicant was relieved of command, received two referred OER's, and a GOMOR.  She further states that she was reassigned and eventually promoted to captain.  

13.  On 30 April 2007, the applicant appealed the subject OER along with a previous OER and the GOMOR.  The applicant cited procedural errors and substantive inaccuracies used as a basis for the evaluation.  He contended that the subject OER was based on a GOMOR dated 26 January 2006, which was a direct result of an invalid 15-6 investigation.  He contended that the investigation was based on flawed and fabricated information that included second-hand information and hearsay resulting in erroneous conclusions.  The applicant stated that the commander had failed to indicate his approval, disapproval, or approval with exceptions, and to sign the document.  He contended that these omissions invalidated the investigation. 



14.  On 14 May 2007, in a Memorandum for Record provided by the applicant, a Medical Corps major stated that the applicant should be retained in the service. 
She wrote that the applicant was an outstanding Soldier, officer, and leader whom any commander would want on their team and would go to great lengths to keep him.  She further wrote that the applicant had earned the respect of 
everyone who interfaced with him.  He was always held in the highest regard because he was always respectful of others, dedicated and loyal to his unit, hard-working, and upheld ethical and moral standards.  She contended that she never heard a disparaging remark about the applicant.  He was always able to motivate Soldiers because he cared for them and he was imminently fair.  She concluded with "The Army should be doing all it can to retain good Soldiers; you won't find anyone better than [the applicant]."   

15.  On 27 September 2007, the Officer Special Review Board (OSRB) considered the applicant's appeal.  The OSRB contacted both rating officials and others who had knowledge of the case to obtain additional information.  The OSRB also researched the applicant's comments regarding the validity and accuracy of the investigation.  The OSRB determined that the investigation was supported by a legal review and was accepted by the appointing authority.  The missing signature was determined to be a technical oversight which does not invalidate the 15-6 investigation findings and recommendations.  The OSRB did not find evidence of a clear and convincing nature that showed the 15-6 investigation was invalid or factually inaccurate, nor that it was based on hearsay and speculation.  It found the applicant's contention to be unsubstantiated.  The OSRB discovered multiple administrative errors in the applicant's OER.  As a result, it determined that the subject OER should evaluate the applicant's entire period of command from 7 April 2005 to 23 March 2006.  It directed that the positive comments from the previous OER be incorporated into the subject OER. It concluded that the changes made to the OER's did not constitute grounds for promotion reconsideration.  

16.  Army Regulation 600-20 (Army Command Policy) provides in pertinent part, that Relationships between Soldiers of different rank are prohibited if they: 

      (a)  compromise, or appear to compromise, the integrity of supervisory authority or the chain of command; 
      
      (b)  cause actual or perceived partiality or unfairness; 

      
      
      (c)  involve, or appear to involve, the improper use of rank or position for personal gain;

      (d)  are, or are perceived to be, exploitative or coercive in nature; or 

      (e)  create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission. 

17.  Army Regulation 623-105 (Officer Evaluation Reporting System) in effect at the time, established the policies and procedures for the OER system.  It provided the opportunity to request a Commander's Inquiry or to appeal disputed reports.  Paragraphs 5-32 and 9-2 provided that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, was 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.

18.  Army Regulation 623-105 further stated that the burden of proof in appealing an OER rested with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must have produced evidence that clearly and convincingly nullified the presumption of regularity.  Clear and convincing evidence must have been of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows that the 15-6 investigating officer determined that the applicant compromised or appeared to have compromised the integrity of the command; that he caused actual or perceived partiality or unfairness; or that he caused actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to conduct its mission.  Furthermore, the applicant admitted that he was responsible for any perceptions of impropriety or favoritism that may have existed and that he should have taken additional steps to avoid such perceptions.

2.  As the company commander and senior officer, it was his responsibility to terminate any type of relationship that adversely threatened the discipline, good order, and trust of the chain of command. 



3.  The applicant's appeal was considered by the OSRB.  The OSRB found that the 15-6 investigation was valid and factually accurate.  The OSRB did determine that the OER had contained administrative errors.  It modified the OER to correct these errors, which included the elimination of an earlier OER and the placing of his entire period of command on the subject OER. 

4.  The subject OER has been accepted by Headquarters, Department of the Army, and is included in the official record of the applicant.  Therefore, it 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.

5.  The memoranda for record written by the unit first sergeant and First Lieutenant S____ provide a very favorable review of the applicant's character.  However, both of these individuals were also subjects of the 15-6 investigation.  The other two memoranda were written by individuals who were not in the applicant's chain of command and thereby were not in a position to evaluate his actions with the same criteria as his supervisor and commanders.   

6.  The burden of proof in appealing an OER rests with the applicant.  In this case, the applicant has not provided sufficient evidence or rebuttal argument to overcome the findings of the OSRB.   

7.  In view of the above, the applicant's request to remove his Relief for Cause OER from his OMPF should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X  ___  ___X  ___  ___X____  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.




      _________X______________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080002836



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1