IN THE CASE OF:	  

		BOARD DATE:	  24 July 2008

		DOCKET NUMBER:  AR20080004929 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant's request, argument, and supporting evidence is submitted through counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the Relief for Cause Officer Evaluation Report (OER) covering the period 12 January through 26 September 2003, be removed from the applicant's Official Military Personnel File (OMPF).

2.  Counsel states, in effect, that the applicant was denied significant regulatory due process during and after the time he received the contested OER and in essence was made a scapegoat for the expediency of his former command.  Counsel claims that moreover, even after the OSRB took action, the contested report still contains procedural and substantive errors that include the fact the applicant was not permitted an opportunity to respond to an investigation conducted on him under Army Regulation 15-6, the results of which formed the basis for the OER in question, and the relief was predicated on an inaccurate and unjust assertion that the applicant violated a General Order (GO) and local policy.  


3.  Counsel further states, in effect, that on 6 July 2003, the applicant assumed command of a Special Forces company deployed to the Philippines on a security assistance mission.  The company was under the operation control of the Joint Special Operations Task Force-Philippines (JSOTF-P), which fell under Pacific Command (PACOM).  The company also performed operations at the direction of and control of the Joint United States Military Advisory Group (JUSTMAG) commander, which fell under Joint Forces Command (JFCOM).  He states that neither JSOTF-P commander nor the JUSTMAG commander served in the applicant's rating chain, and that the 1st Special Forces Group (SFG) chain of command retained that administrative function.  He further states that the command and control functions between JUSTMAG and JSOTF-P were frequently blurred because of the nature of the company's mission and the fact they worked for 2 different commanders.  

4.  Counsel further claims that JSOTF-P was governed by PACOM's GO-1, which prohibited the purchase, use, possession, etc of alcohol, but delegated to 0-6 commanders and above the authority to grant exceptions on a case-by-case basis.  Specifically, the JSOTF-P allowed alcohol on a weekly basis with a 
2 drink limit as part of their drinking policy.  JSOTF-P had certain force protection policies (FPP) and battle staff directives (BSD) in place dealing with the consumption of alcohol and carrying weapons.  Part of the mission of the applicant's unit was intelligence gathering excursions involving local nationals (LN).  To protect LN sources from reprisal and for other operational security (OPSEC) reasons, the unit members consumed limited amounts of alcohol when at these bars or nightclubs.  

5.  Counsel states it should be noted that the school house where the members of the applicant's unit were trained in the types of operations in which they engaged in the Philippines teaches the use of alcohol to facilitate the collection of intelligence.  The senior noncommissioned officer (NCO), a sergeant major (SGM), of the applicant's unit confirms in a supporting statement that all intelligence meetings at which alcohol was consumed were briefed in situational reports (SITREPS) to the JSOTF-P liaison officer (LNO).  The LNO was responsible to brief those SITREPS to the JSOTF-P commander, and to tell the members of the applicant's unit whether there were objections or reservations to the mission plan.  During the applicant's period in command, no one at JSOTF-P, either the LNO or anyone else, ever stated an objection to a mission plan involving alcohol consumption.  The unit SGM further stated he was physically present when the applicant briefed the battalion commander on the mission plan for the Philippines, and when the applicant briefed the battalion commander's successor in theater.  The SGM confirms that both briefings contained information that members of the unit were going to or had consumed alcohol for mission specific purposes consistent with GO-1 (obtaining approval from 0-6 lever commander) and that a modification of the FPP was not needed. 
6.  Counsel states that on 13 September 2003, members of the applicant's unit were in a vehicle accident and at least one of the passengers had consumed alcohol, but the driver had not.  On 15 September 2003, the commander JSOTF-P initiated an Army Regulation 15-6 investigation into the incident and appointed an investigating officer (IO).  On 26 September 2003, the battalion commander placed the applicant on administrative leave and ostensibly temporarily suspended him from command.  On 30 September 2003, the IO completed her findings and recommendations, and stated, among other things, that no adverse action should be taken against the applicant, and that any confusion regarding whether members of the applicant's unit could consume alcohol was the fault of the JSOTF-P.  The IO made additional recommendations on corrective measures that should be employed; however, the applicant was unable to implement any of these corrective measures because he was never reinstated to command.  

7.  Counsel states that on 17 November 2003, after the applicant had been temporarily suspended from command, the battalion commander initiated a second Army Regulation 15-6 investigation and appointed an officer junior in rank to the applicant as the IO and tasked him to investigate a host of allegations against the applicant and other members of the unit despite the fact these allegations had already been investigated during the original investigation and were determined to be unfounded.  The second investigation was initiated assumedly because of a vehicle accident that occurred on 1 November 2003, again allegedly involving alcohol consumption by members of the applicant's unit. The second IO opined that the applicant failed to employ the same risk assessment measures as a previous commander of the unit; however, the IO failed to substantiate his allegations or provide policy or regulatory support for his assertions.  For example, he stated that the applicant followed a lose (sic) policy of conduction personnel meets spontaneously rather than opting for a more deliberate approach like the previous commander.  The IO did not say how he arrived at this conclusion or refer to any policy or regulation that demonstrated what the applicant did was deficient, nor did he say why the original IO's findings, which contradicted his, were inaccurate.  

8.  Counsel indicates that contrary to the unsupported findings of the second IO, the first IO provided a sworn statement in which she states she reviewed over 
30 concept of operations (CONOPs) submitted by unit personnel, which all contained details of operations, which included who would carry weapons, who would be the designated driver, who would consume alcohol, and who would not consume alcohol.  Counsel also states the applicant officially received his Relief for Cause OER in February 2004; however, he never officially received a copy of either investigation, nor was he provided an opportunity to comment on the underlying investigations.  The OSRB opined that because the OER regulation (appeal process) provided the applicant some form of due process, it did not matter that he was not permitted the opportunity to respond to the investigations.
9.  Counsel further states that the OSRB also determined that the applicant failed to produce clear and convincing evidence to overcome the presumption of regularity to delete the subject OER, and that the comments provided to the OSRB by the Deputy SF Group Commander that the applicant's unit took liberties with the alcohol and that the applicant failed to enforce regulations was credible.  However, this commander was not present in the theater and relief on both investigations to make these determinations.  Finally, the OSRB determined there was clear and convincing evidence to establish that the applicant violated GO-1 and BSD-26 and that force protection was degraded.  

10.  Counsel argues that the applicant was denied due process mandated by Army Regulation 600-20 and was prejudiced as a result; that the OSRB erred in opining that the applicant had not presented clear and convincing evidence sufficient to justify deleting the relief for cause report and opining that the regulatory protections of Army Regulation 635-200 were sufficient.  Counsel contends that the evidence upon which the OSRB relief in finding the applicant had not met the clear and convincing evidentiary burden was that the applicant violated GO-1 and BSD-26, which led to a degradation of force protection.  However, the first IO clearly stated that the applicant's unit followed the spirit, if not the letter of GO-1 when it provided CONOPs to JSOTF-P indicating when and where alcohol would be consumed, the IO confirmation in her sworn statement that members of the chain of command knew or should have known when members of the applicant's unit were consuming alcohol because that information was contained in CONOPs provided to the JSOTF-P LNO, who briefed them to the JSOTF-P commander.  Even more importantly, was the conclusion of the IO that SF personnel were permitted to operate under different rules than other United States personnel and that the JSOTF-P leadership believed the same thing.  

11.  Counsel further argues that the unit SGM confirmed that both of the applicant's raters were aware of how and when members of the unit consumed alcohol, and that FPPs were not modified.  For the applicant's rater to assert he was unhappy with how the applicant conducted force protection and that the applicant failed to enforce critical policy after the fact is disingenuous at best because the battalion commander never questioned it when he was briefed, nor did he provide the applicant the opportunity to make any adjustments after the September 2003 accident because he had relieved the applicant of command.  Only after local nationals attempted to take advantage of August and September incidents, did members of the applicant's chain of command question the applicant's leadership.  If there were any question about how the applicant's unit conducted force protection, it certainly would have been relevant at the time the mission was brief was presented.  

12.  Counsel states that during the applicant's period in command, there were two accidents in August and September 2003.  The IO on the first investigation stated that there was an extortion attempt by local nationals, and that the accident in question was not alcohol related because the driver had not consumed alcohol and had in fact swerved to avoid an oncoming vehicle.  Even more compelling is the reduction in violence in the area of operations relative to the loss of life by service members during the applicant's command and immediately thereafter.  Of further significance to this issue is the subsequent revision of GO-1 in January 2004, which authorized personnel engaged in missions consistent with the applicant's unit mission to seek approval for and consume alcohol in the same manner and fashion the applicant had operated. Counsel claims this begs the question, if how the applicant operated was so problematic, why incorporate it in a new GO-1.  As indicated by the first IO and by the unit SGM, the applicant was the SF's community sacrificial lamb offered to appease other commands when his unit was merely the victim of host nation smear tactics.  

13.  Counsel claims the first IO received a great deal of pressure (unlawful command influence) to alter her findings and recommendations to make the applicant culpable.  If her statement does not establish bias or prejudice on the part of the command sufficient to substantiate inaccuracy under the OER regulation, then what amount of evidence would?  

14.  Counsel concludes by stating that the applicant has clearly established clear and convincing evidence sufficient to justify deleting the relief for cause OER in question.   

15.  Counsel provides the following documents in support of the application:  Brief; Investigation Report; Sergeant Major (SGM) Statement; Inquiry Report; JSOTF-P Officers Statements; Investigating Officer (IO) Statement; Officer Special Review Board (OSRB) Case Summary; and Rater Electronic Mail 
(e-mail) Message, dated 9 October 2007.

CONSIDERATION OF EVIDENCE:

1.  The record shows that on 13 September 2003, Soldiers assigned to the applicant's unit were involved in a vehicle accident.  Subsequently, two 
Army Regulation 15-6 investigations were conducted into alcohol violations by members of the applicant's command, and the applicant was ultimately relived of his command based on these incidents.   


2.  The record shows that the applicant received a referred annual OER covering the period 12 January 2003 through 11 January 2004, and a Relief for Cause OER for the period 12 January 2004 through 19 February 2004, which was ultimately appealed to the OSRB.  The OSRB took action that resulted in the deletion of the initial Relief for Cause OER, and that changed the Annual OER to a Relief for Cause report.   

3.  The amended Relief for Cause OER covered the period 12 January 2003 to 26 September 2003, and evaluated the applicant as a SF company commander. In Item Part V (Performance and Potential Evaluation) the rater, a lieutenant colonel, placed the applicant in the three block (Unsatisfactory Performance-Do Not Promote).  The comments provided were mostly favorable with the exception of a statement that indicated, in effect, that due to a failure to enforce force protection measures, the rater had lost trust and confidence in the applicant's ability to carry out his duties and responsibilities as a commander, and therefore, he relieved the applicant of his command.  

4.  In Part VIIa (Promotion Potential) the senior rater, a colonel, placed the applicant in the three block (Do Not Promote).  He commented that he fully supported the applicant's replacement as the mission commander.  He further indicated that the applicant was a competent officer, and with the exception of a few bad decisions, he commanded his company in an exceptional manner.  The senior rater also stated that he concurred with the rater's action to relieve the applicant from command.  

5.  The OSRB Case Summary related to the applicant's appeal action showed that the applicant's appeal was partially approved and supported deletion of the original Relief for Cause OER and amendment of the annual report by changing it to a Relief for Cause report for the period 12 January 2003 through 
26 September 2003.  

6.  During its review, the OSRB contacted the Assistant S-3, JSOFT-P to obtain information regarding command's alcohol consumption policy.  This official noted that on occasion, teams had to consume alcohol while in country to maintain local customs and culture, but only a sip was to be consumed. 

7.  The Deputy SF Group Commander was also contacted regarding the use of alcohol.  This commander stated that waivers of GO#1 were periodically provided for small groups of Soldiers to ingest alcohol at social events with counterpart troops and with Philippine military and civic leaders when troops were in controlled environments.  


8.  The Deputy SF Commander recalled that at some point during the applicant's command, his troops began to take liberties with alcohol, and were found in violation of the command policy governing alcohol use, and that troops in the applicant's command were involved in alcohol related vehicle accident while in the possession of firearms, and that although the applicant was not personally present, as the commander of the unit, he was ultimately responsible for the actions of his Soldiers and this resulted in his relief from command.   

9.  A statement, dated 23 January 2008, from the IO on the first investigation conducted on the applicant was provided with this application.  The IO states that she spent several weeks conducting her investigation and interviewed approximately 20 people, to include members of the JSOTF-P chain of command and members of the applicant's unit.  She states that as part of her investigation, she also reviewed GO-1, BSDs, and FPPs, as well as other documented evidence.  She confirms that her ultimate conclusions were that the JSOTF-P chain of command knew or should have known that one member of the applicant's unit was consuming alcohol at the time of the 13 September 2003 accident.  

10.  The IO further states that although she was unable to interview the JSOTF-P commander at the time of the accident, who had departed the command, her investigation revealed that under his command, consumption of alcohol during operations was a known, routine, and arguably accepted practice.  She claims that this was verified by the fact that the applicant's unit routinely prepared CONOPs that were provided to JSOTF-P commander and J-3 via the JSOTF-P LNO, which identified the use of alcohol during specific operations.  She states she reviewed numerous CONOPs that were provided prepared by the applicant's unit for an estimated 30 scheduled operations that included the CONOP for the night of the accident.  She confirms that each CONOP identified specific details of the planned operations from locations, times, who would carry weapons, who would be the designated driver, who would consume alcohol, and who would not consume alcohol.  She states that every CONOP was given to the JSOTF-P LNO, who turned the plan into the JSOTF-P headquarters in advance of the event.  Therefore, she claims, that if this procedure was a violation of rules, there was ample opportunity to for the JSOTF-P chain of command to prevent the practice before it occurred.  She claims the members of the applicant's unit spoke to her openly because they believed they had permission to act in accordance with the CONOP, and confirmed that they operated under the assumption their activities were approved in accordance with the GO-1 delegation authority, and they made no attempt to hide their activities because they believed their actions were officially sanctioned.  She claims that her investigation also revealed that the JSOTF-P LNO was in fact with the members of the applicant's unit on the night of the accident and in fact consumed alcohol as well, furthering the belief that this was an approved practice by the JSOTF-P headquarters.  
11.  The IO concludes her statement by indicating that based on her investigation, it was clear that as a result of their sensitive mission, SF personnel were permitted to operate under different rules that other United States personnel assigned to JSOYF-P and she firmly believes that the JSOTF-P chain of command that was in place operated with this same belief.  She states that she did not find that alcohol contributed to the accident since the individual who had been drinking was not the driver of the vehicle, and that she did not believe that members of the unit intentionally violated any established orders.  The JSOTF-P commander knew, or should have known that alcohol consumption was standard practice since it was routinely reported prior to the event, and therefore, if it was in fact a violation of general orders, the JSOTF-P commander had ample opportunity to correct the misconception at anytime.  As a result of her investigation, the IO stated it was her belief that the applicant was wrongly held accountable in this incident.  

12.  The unit SGM also provides a supporting memorandum, in which he states that the 1 November 2003 incident that led to the 17 November 2003 commander's inquiry took place after the applicant had been recalled to 
Fort Lewis, Washington, on 26 September 2003, and they had a new commander.  

13.  Army Regulation 600-20 (Army Command Policy) prescribes the policies and responsibilities of command, which include the well-being of the force, military discipline, and conduct, the Army Equal Opportunity Program, and the Army Sexual Assault Victim Program.  Paragraph 2-17 provides guidance on relief for cause.  It states, in pertinent part, that if a relief for cause is contemplated on the basis of an informal investigation under Army Regulation 15-6, the referral and comment procedures of that regulation must be followed before initiating or directing the relief.  Any action purporting to initiate or direct a relief for cause on the basis of an informal investigation under Army Regulation 15-6 taken prior to completion of the procedural safeguards outlined in that regulation will be considered for all purposes as a temporary suspension from assigned duties. 

14.  Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  


15.  Paragraph 1-9 of the same regulation provides guidance on the use of results of investigations in adverse administrative actions.  It states, in pertinent part, that when adverse administrative action is contemplated against an individual (other than a civilian employee, see b above), including an individual designated as a respondent, based upon information obtained as a result of an investigation or board conducted pursuant to this regulation, the appropriate military authority must observe the following minimum safeguards before taking final action against the individual:  (1) Notify the person in writing of the proposed adverse action and provide a copy, if not previously provided, of that part of the findings and recommendations of the investigation or board and the supporting evidence on which the proposed adverse action is based; (2) Give the person a reasonable opportunity to reply in writing and to submit relevant rebuttal material; and (3) Review and evaluate the person's response. 

16.  Paragraph 1-9, Army Regulation 15-6, further states, in pertinent part, that there is no requirement to refer the investigation to the individual if the adverse action contemplated is prescribed in regulations or other directives that provide procedural safeguards, such as notice to the individual and opportunity to respond.  For example, there is no requirement to refer an investigation conducted under this regulation to a Soldier prior to giving the Soldier an adverse evaluation report based upon the investigation because the regulations governing evaluation reports provide the necessary procedural safeguards. 
Army Regulation 623-105, in effect at the time, prescribed the policies and procedures pertaining to the Officer Evaluation System (OES) and Officer Evaluation Reporting System (OERS).  It also provided guidance regarding redress programs including commander inquiries and appeals.  Paragraph 3-50 contains guidance on the submission of a Relief-For Cause OER.  It states, in pertinent part, that a report is required when an officer is relieved for cause regardless of the rating period involved.  Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty.

17.  Paragraph 3-57 of the OER regulation provides the basic rule applicable to modifications of previously submitted reports.  It states, in pertinent part, that an evaluation report accepted by Headquarters, Department of the Army (HQDA) and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly designated rating officials, to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also states that requests that a report that has been accepted for filing in an officer’s record be altered, withdrawn, or replaced with another report will not be honored.  

18.  Chapter 6 of the same regulation contained the policies and procedures pertaining to managing the OER redress program.  Section III contains guidance on OER appeals and paragraph 6-10 outlined the burden of proof that must be met to support a successful OER appeal.  It stated that the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraphs 3-57 should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  It further stated if the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention, as submitted through counsel, that his Relief for Cause OER was unjust was carefully considered and found to have merit.  By regulation, if the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met.  

2.  In this case, it is clear that the findings of the first investigation cleared the applicant of violating the command's alcohol consumption policy, and confirmed that the use of alcohol by unit members, which included during the operation of 
13 September 2003, had been tacitly approved by the JSOTF-P chain of command by its prior acceptance of the CONOPs that outlined this alcohol use prior to the actual conduct of the operation.  

3.  Further, the record confirms the second investigation that resulted in the applicant's relief was based on an alcohol related incident that took place subsequent to the applicant's departure from the command in November 2003.  As a result, it appears the applicant's relief was the result of the command being embarrassed by alcohol related incidents that it had tacitly approved by its prior acceptance of CONOPs submitted that outlined the operations and consumption of alcohol in question prior to the actual events.  Although the OSRB correctly determined that the protections provided by the OER regulation through the appeals process satisfied the referral provisions of Army Regulation 600-20, this factor alone does not justify the chain of command's failure to inform the applicant of the investigations conducted on him, or to solicit his side of the story during the investigative process.  


4.  Given the errors identified by the OSRB during the original appeals process that resulted in the modification of the two reports initially submitted on the applicant, coupled with the facts outlined in the preceding paragraphs, it is concluded that the applicant has satisfied the clear and compelling evidentiary standard to support removal of the relief for cause report in question.  As a result, it would be appropriate to grant the requested relief in this case.  

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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:

	a.  removing the Relief for Cause Officer Evaluation Report covering the period 12 January through 26 September 2003 from his Official Military Personnel File; 

	b.  declaring the period of service covered on the OER as a nonrated period of service; and

	c.  placing a non-prejudicial explanation in his records explaining the gap created in OER rating periods as a result of this action. 




      _______ _   _______   ___
               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)                                         AR20080004929



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ABCMR Record of Proceedings (cont)                                         AR20080004929


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