RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2008
	DOCKET NUMBER:  AR20080004886 


	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.  Through a State Representative, the applicant requests, in effect, reconsideration of his two earlier petitions requesting the removal of a General Officer Memorandum of Reprimand (GOMOR) and Officer Evaluation Reports (OERs) for the periods ending on 4 May 1989 and 12 October 1989, from his Official Military Personnel File (OMPF); and his reinstatement on active duty in the Active Guard Reserve (AGR) Program.  

2.  In a letter to his State Representative, the applicant states, in effect, that the  Army Board for Correction of Military Records (ABCMR) decision to close his case without further consideration denied him a fair and just review of the evidence he provided in support of his request to have adverse OERs and a GOMOR removed from his OMPF, and to consider his appeal that he be granted constructive relief in the form of training, promotion, and reinstatement on active duty in the AGR program.  He indicated that on three separate occasions the ABCMR had ruled against him even though he provided evidence backing his allegations that the negative comments against him contained on the adverse OERs were not reflective of his duty performance during the rating periods.  

3.  The applicant claims his commander was a troubled man who was obsessed with doing everything possible to destroy him for having contacted the Inspector General (IG) and FBI regarding the commander's unethical and criminal activities while in the performance of both his civilian and military duties.  He states his commander lied under oath to the IG, FBI, Army Criminal Investigation Command (CIC/CID), and civilian law enforcement agencies, and compromised both his integrity and honesty.  He claims he does not understand why the ABCMR believes what his commander said about him in the OERs in question, and the allegations made by his commander regarding his substandard performance and misconduct are not credible.  He claims he does not believe the ABCMR considered the evidence he provided in support of his requests, and bases this belief on the administrative closure letter he received from the ABCMR Director, dated 28 May 2003, and he claims that the statement of facts he provides contests the ABCMR findings outlined in this letter.  

4.  The applicant provides a self-authored letter to a State Representative and the State Representative's letter to the Secretary of the Army, and a Statement of Facts as new evidence in support of his reconsideration request.  He also resubmits supporting statements and evidence that was available to and reviewed by the Board during its two prior reviews of the 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 Army Board for Correction of Military Records (ABCMR) in Docket Number AC91-05367, on 
22 July 1992, and in Docket Number AC91-05367A, on 22 September 1993.  

2.  During its original 1992 review of the case, the Board determined the GOMOR in question was issued to the applicant and filed in his OMPF in accordance with the applicable regulation.  It also found that there was no evidence that the basis (refusal to take a breathalyzer test) for the GOMOR was untrue or that the GOMOR was unjust.  It further determined that the contested OERs appeared to represent a fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the periods in question.  

3.  During its 1993 reconsideration of the applicant's case, the Board again found the applicant was properly issued the GOMOR in question for refusing to take a breathalyzer test, and while he was subsequently found not guilty of driving while intoxicated (DWI) in a civilian court, this did not negate the fact he refused to take the breathalyzer test, which was the basis for the issue of the GOMOR.  It also determined that the rater on the contested OERs rewrote the contested OERs and adjusted the applicant's evaluation upward, and that notwithstanding the serious ethical problems of the senior rater (SR), this did not necessarily imply that the evaluation of the applicant's future potential was defective.  It further found that a review of the applicant's OER history revealed that his potential had never been evaluated higher than center of mass (COM), when compared with his contemporaries, by any of his SRs. 

4.  In a 28 May 2003 letter, the Director of the ABCMR informed the applicant that he had failed to provide any new critical issues that were not considered by the Board during its two prior reviews of the case, and the applicant was advised that his case was being administratively closed without referral to the Board.  The ABCMR Director also outlined all the findings and determinations arrived at by the Board during its two previous reviews of the case.  

5.  The applicant provides a Statement of Facts as new evidence in support of his reconsideration request.  In this statement, he indicates that upon entering active duty in the AGR program in 1987, he was assigned to the 829th Station Hospital in Lubbock, Texas.  He states that soon after arriving at the hospital, he became aware of illegal acts by his commander while in the performance of his military duties.  

6.  The applicant claims that he contacted the Army IG and FBI about certain irregularities in the command and in his commander's civilian practice.  He states the FBI conducted a preliminary fact finding investigation and forwarded the matter to the Army CID and numerous Texas law enforcement agencies where his commander worked as a forensic pathologist.  He claims the CID substantiated his allegations of fraud and larceny against his commander, and a Suspension of Favorable Personnel Actions (FLAG) was imposed on his commander.  He states his commander was forced into retirement in 1990, and the commander was indicted and prosecuted for fraud, aggravated perjury, tampering with autopsy reports in order to obtain convictions against innocent personnel, falsifying pay records and subsequently went to prison for other related crimes.  He claims that before his commander's retirement, he saw fit to ruin the applicant's career.

7.  The applicant states that as a result of his commander's unjust actions, he received two unjustified OERs and a GOMOR.  He states that based on the adverse OERs, his command initiated involuntary release action against him for alleged substandard performance of duty and misconduct.  He further states that he was unjustly subjected to Uniform Code of Military Justice (UCMJ) action that resulted in his relief from duty and transfer to Fort Sam Houston, Texas, where he was restricted to the base.  He states that after command initiated investigations failed to substantiate any of the allegations leveled against him, all adverse actions were dropped.  He states that an AGR Accessions and Continuation Board did not select him for continuation in the AGR program, which he claims was a direct result of retaliatory and discriminatory acts of his command that caused the board to negatively view his active duty performance, and as a result, he was prevented from attaining an active duty retirement.  

8.  The applicant also states that the ABCMR has twice denied his appeal to remove the contested OERs from his OMPF, and the 5 March 2001 Letter from the ABCMR, states he has failed to show sufficient evidence or proof the Army did not follow its regulations, that an injustice had been done to him, or that the OERs were inaccurate.  He claims the evidence he has provided with his two previous applications clearly shows the OERs were inaccurate, that his command circumvented and or violated numerous regulations, and that he suffered a great injustice at the hands of his command.  He also outlines the evidence he provided that he believes support this claim.  

9.  The applicant concludes his statement of facts by stating his career was cut short based on mere allegations, and he was given no alternative options as a result of his speaking out against his command.  He states that neither his OMPF or any other evidence indicates or suggests he was performing poorly and/or that he committed a UCMJ violation that warranted initiation of elimination action. 
10.  The applicant goes on to request that the ABCMR look at the merits of his case, his prior service, and his willingness to serve, and that he be granted relief in the form of constructive service based on the injustice done to him.  He further requests that the contested OERs along with any other derogatory information be removed from his record.  He states that he has suffered inappropriate consequences for his actions and continues to be punished through the loss of retirement.  

11.  The applicant's record shows that he was appointed a Reserve commissioned officer, in the rank of first lieutenant (1LT), on 14 December 1982, and on 19 December 1986, he was promoted to captain (CPT).  On 5 May 1987, he was ordered to active duty in the AGR program for a period of 3 years, and was assigned to the 829th Station Hospital, Lubbock, Texas.  The record also shows that on 4 September 1988, while the applicant was on active duty in the AGR program, he was stopped by the police and cited for DWI, after being stopped while driving on the side of the road.  The police report indicates the applicant's breath smelled of alcohol, his eyes were bloodshot, he was swaying, and he admitted that he had been drinking cognac.  It also indicates the applicant refused to take breathalyzer test.  The applicant acknowledged in writing the police officer DWI statutory warning that his driver's license would be automatically suspended; however, if he requested a hearing on the suspension of his driver's license, it would not be suspended or denied until the hearing had been held.  

12.  On 3 January 1989, the applicant received a GOMOR from the Commanding General (CG), Fifth United States Army (FUSA) and Fort Sam Houston, Texas, a lieutenant general (LTG).  The CG reprimanded the applicant for refusing to take a lawfully requested chemical test for blood alcohol content on 4 September 1988.  The applicant acknowledged receipt of the GOMOR and his counsel submitted a rebuttal statement on the applicant's behalf.  After the applicant was found not guilty of DWI in a civilian court, the CG, FUSA, after reviewing all matters submitted in appeal, decided to direct that the GOMOR be filed in the applicant's OMPF.  The Department of the Army Suitability Evaluation Board (DASEB), after considering all the evidence submitted by the applicant, which included his not guilty finding, denied his petition to remove the GOMOR from his OMPF.  The DASEB opined that the applicant had a poor record and showed no remorse.  

13.  In February 1989, a FLAG action was initiated on the applicant subsequent to allegations of rape.  The allegations and evidence were presented to the Lubbock Grand Jury and the case was "no billed" and did not go to trial.  The concurrent Army investigation found that fraternization did not occur between the applicant and a female Soldier; and that he had associated with her and others in a bar one Saturday evening after a training assembly.  Later, the female Soldier called him and he visited her apartment, and while this may have been inappropriate conduct, it was not unlawful.  The FLAG action was removed.  

14.  The Officer Special Review Board (OSRB) considered the applicant's appeal of the contested OERs.  The applicant's appeal was based on his contentions that the OERs in question were substantively inaccurate, illegal, incorrect, unjust and untrue, and that they violated regulatory counseling requirements.  The applicant asserted that the senior rater (SR) forced the rater to prepare adverse evaluations and that the OERs were revenge for his having reported the SR to the FBI, CID, and IG for wrong doing while he was the commander of the 829th Station Hospital.  

15.  The OSRB, after extensively reviewing all the evidence, which included a commander's inquiry (CI) with multiple statements from the rater, determined that what the CI ended up with was a rater who considered the applicant unsuitable for his job but wrote a good OER anyway, apparently thinking it might preclude himself from being eliminated from the AGR program, then rewrote the report to be very adverse when prompted to do so by direct and indirect influence from the SR; wrote a second adverse OER but characterized it as being without command influence, and finally reversed both OERs upward in rating because his own report had not yet been written.  In the opinion of the OSRB, the rater's problem was not so much command influence as self interest and the usual attendant lack of moral courage.  

16.  The OSRB considered particularly significant the absence of anything in the rater's statements to the effect that the final versions of the two contested OERs were inaccurate evaluations.  The CI indicated that the overriding factor in all of the interviews conducted was the fact that the applicant was not qualified.  The OSRB finally concluded that the applicant failed to provide clear and convincing evidence to support his contentions that the contested OERs in their final form were inaccurate or unjust, and it finally denied the applicant's appeal.  


17.  On 4 August 1989, the applicant's Acting Commander, Headquarters, Fort Sam Houston, Texas, not the SR, notified the applicant that he intended to recommend the applicant be involuntarily released from active duty because of misconduct and substandard performance of duty.  In the removal notification, in addition to citing rater and SR comments in the contested OERs, the Acting Commander cited six other specific incidents of the applicant's failure in the performance of duties to support the substandard duty performance basis for the removal action.  The Acting Command also cited two specific acts of misconduct, which were the garnishment of the applicant's pay based on his failure to pay child support and the incident for which he received the GOMOR on 3 January 1989.  

18.  On 6 March 1990, the Director of the Full Time Support Management Center, Officer of the Chief Army Reserve (OCAR), notified the applicant that the Chief, Army Reserve, had approved the results of the 17 January 1990, USAR AGR Continuation Board, which after examining the applicant's entire record on an impartial basis, did not recommend the applicant's continuation in the USAR AGR program, and directed the applicant's release from active duty on 9 June 1990.  

19.  Army Regulation 190-5, paragraph 2-7, required a general officer issue a written administrative reprimand to noncommissioned officers, warrant officers, and commissioned officers, who refuse to take a lawfully requested test to measure alcohol content when there was a reasonable belief of driving under the influence of alcohol/drugs.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that the ABCMR's decision to close his case without further consideration denied him a fair and just review of the evidence he provided in support of his request to have adverse OERs and a GOMOR removed from his OMPF, and just consideration of his appeal that he be granted constructive relief in the form of training, promotion, and reinstatement on active duty in the AGR program, were carefully considered.  However, there is insufficient evidence to support these claims.  


2.  The record confirms that the applicant's case, including all the evidence of record and independent evidence submitted by the applicant was thoroughly and comprehensively reviewed and considered by the Board during its prior reviews of this case, and by the Director of the ABCMR in the subsequent staff administrative closure.  The fact that the applicant is dissatisfied with the prior ABCMR decisions and actions on his case is understood; however, this factor alone does not provide a sufficient evidentiary basis to amend the original Board decisions, or to grant the requested relief.  

3.  The applicant's assertions that his SR was unethical and attempted to exert undue command influence in the preparation of the contested reports has been duly noted and acknowledged by the ABCMR.  However, the OSRB and the two previous Board panels that reviewed this case concluded this undue influence was appropriately and effectively dealt with during the CI process, and that the final OERs submitted were an accurate and fair representation of the applicant's duty performance during the rating periods.  

4.  In arriving at final conclusions, the OSRB and the ABCMR panels that reviewed this case placed significant weight on the local CI determination that the overriding factor in all of the interviews conducted regarding the contested OERs was the fact that the applicant was not qualified for his position.  The CI results and the subsequent substandard performance of duty and misconduct matters documented in the AGR removal recommendation on the applicant fully support the original findings and conclusions of the OSRB, and the findings and recommendations of the ABCMR on this matter.  As a result, notwithstanding the serious personal flaws of the SR, which were many, there remains an insufficient evidentiary basis to conclude the reports in question were not an accurate and fair evaluation of the applicant's performance of duty during the rating periods, or that would support granting this portion of the requested relief.  

5.  The evidence of record further shows that the GOMOR issued to the applicant was processed and filed in the OMPF in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the GOMOR process.  


6.  Further, the applicant's issues regarding the GOMOR were fully and appropriately reviewed by the DASEB in the appellate process, and fully vetted during both reviews of this case by the ABCMR.  The official police report confirms the applicant was stopped for DWI and refused to take a breathalyzer test, and as a result, he was issued the GOMOR in question by the CG, FUSA.  Other than his assertions, there is no evidence of record or independent evidence to support the applicant's claim that the SR was somehow responsible for his being stopped by the police, or that the CG, FUSA was unduly influenced by the SR to issue and file the GOMOR in his OMPF.  As a result, there is no evidence of any error or injustice related to the issue and filing of the GOMOR in the applicant's OMPF.  

7.  After reviewing the applicant's entire record, an AGR Continuation Board recommended he not be continued in the AGR program, and the results and recommendations of this board were properly reviewed and approved by the Chief, Army Reserve.  The applicant's AGR removal action was properly processed in accordance with the applicable regulation and his rights were fully protected throughout this process.  As a result, there is an insufficient evidentiary basis to support reinstating the applicant on active duty in the AGR program, or to grant him constructive active duty service credit. 

8.  Although the applicant has raised many valid points regarding the ethical lapses of his former commander (SR) in his military duties, and regarding the SR's unprofessional and possible criminal conduct as a civilian, the applicant has failed to provide compelling evidence that this was the sole or overriding factor upon which all the adverse actions in question were based.  The applicant's record is full of instances of questionable conduct and documented poor duty performance unrelated to the OERs in question, and which alone support his ultimate removal from the AGR program.  As a result, there is an insufficient evidentiary basis to support granting constructive active duty service credit, or to support his reinstatement in the AGR program.  

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 to amend the decision of the ABCMR set forth in Docket Number Docket Number AC91-05367, dated 22 July 1992; and in Docket Number AC91-05367A, dated 22 September 1993; or to grant his request for constructive active duty service credit and/or reinstatement in the AGR program. 




      _________x_____________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080004886


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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