RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 May 2008
	DOCKET NUMBER:  AR20080005711 


	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 reconsideration of his previous request to have an officer evaluation report (OER) ending on 30 September 2004 removed from his Official Military Personnel File (OMPF) and to receive promotion reconsideration to the rank of colonel.

2.  The applicant states, in effect, that a relief for cause OER was not warranted and does not meet the criteria of the regulation because he did not fail in the performance of his duties, which is supported by the ratings he received.  He further states that he was not counseled prior to the relief and that it was a total surprise.  He goes on to state that he simply accepted an offer to change positions at the counsel of his rating officials who provided the opportunity and support of the move and then relieved him.  He continues by stating that the OER was drafted and edited three times and he was never served with the OER that was finally accepted and placed in his OMPF as required by the applicable regulation, which is a violation of the regulation and law.  He also states that the OER was altered to reflect that he refused to sign the OER; however, he was never served with the OER so he could not have refused to sign the OER.  He further states that his rating chain altered the OER to match the second referral letter without providing him a third referral for the third and final report, which was an act of falsifying an official document and an attempt to mask the truth.  He goes on to state that the OER undoubtedly caused him not to be selected for promotion to the rank of colonel and he should receive reconsideration for promotion after the OER is removed.   

3.  The applicant provides a three-page letter explaining his request, copies of letters from his congressional representative to the Secretary of the Army, a letter from the applicant to the Secretary of the Army with an Executive Summary prepared by the applicant, a copy of the Relief for Cause OER (all versions) and his rebuttals, copies of Memorandums for Record prepared by the applicant’s rating officials and the command Staff Judge Advocate, a copy of his request for a commander’s inquiry and the results of the  commander’s inquiry, his Officer Special Review Board (OSRB) case summary, copies of the Board’s previous considerations of his requests on 26 June and 11 December 2007, a copy of his Officer Record Brief (ORB), a copy of a supplementary review conducted by the Corps commander, copies of electronic mail (email) messages between the applicant and Department of the Army officials, a copy of his request to be removed from his position as the Division G4, the results of his visit to the behavioral health clinic, excerpts from Army Regulation 623-105, a copy of his appeal to the OSRB, a copy of his previous appeal to this Board with a table of contents, eight letters of support from senior officers, and the OER referrals.     

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 AR20060010667, on 26 June 2007 and AR20070011110 on 11 December 2007.

2.  In the previous reviews of the applicant’s case, the Board found insufficient evidence to support the applicant’s allegations regarding the lack of objectivity, fairness, honesty and integrity on the part of rating officials or his assertions that the OER in question was illegal and unjustly rendered.  The Board concluded that there was insufficient evidence to establish that the report was in error or unjust and in both previous cases denied his requests.  

3.  The applicant was commissioned as a second lieutenant in the Georgia Army National Guard on 9 December 1982.  He entered active duty as a United States Army Reserve (USAR) infantry second lieutenant on 24 March 1985 and continued to serve on active duty.  He was promoted to the rank of captain on 1 November 1988 and in 1991, he served 6 months in Saudi Arabia in an armor battalion.  He was promoted to the rank of lieutenant colonel on 1 March 2001 in the Quartermaster Corps.  After completing a 24-month tour in Korea as a battalion commander of a maintenance battalion, the applicant was hand-picked to serve as the Division G-4 of the 3rd Infantry Division at Fort Stewart, Georgia.  He arrived at Fort Stewart on 18 August 2004 and on 21 September 2004, after having returned from a leader’s reconnaissance trip to Iraq in preparation for deployment of the Division to Iraq, he requested of the commanding general that he be removed from his position and placed in a job that would allow him to continue to serve the Army, but allow him to focus on the immediate and urgent needs of his family.  He had approximately 19 1/2 years of active service at that time.          

4.  On 30 September 2004, the commanding general directed his relief and a “Relief for Cause” OER was subsequently prepared.  It appears that there were errors on the report that had to be corrected at least twice before the final report was completed.  The applicant was informed to transition his duties to the Deputy G4, who was subsequently appointed as the Division G4.  

5.  In Part IVa and b, the applicant received all “Yes” ratings from his rater, the Division Chief of Staff.  In Part V, his rater indicated that the applicant was selected for the nominative position of G4 of the Division from a slate of highly competitive former battalion commanders and shortly after his arrival he requested to be removed from his position due to personal reasons.  He further stated that he could not assess the applicant’s potential for promotion, advanced schooling or increased responsibility due to the short period of time he had served as the G4.  He also indicated that the applicant should be allowed to continue his career and service until retirement eligible.

6.  In Part VII, the senior rater (SR) placed the applicant in the center of mass of his SR profile and indicated that as a result of the applicant’s request to be removed from his position as the Division G4, in the face of the Division’s upcoming deployment to Iraq, he directed the applicant’s relief.  He also stated that the applicant should be allowed to retire after serving the Army in another position.  There is also an added comment that “officer refuses to sign.”

7.  Meanwhile, the applicant was reassigned to Fort Monroe, Virginia on 27 October 2004 and the OER was referred to the applicant on 16 December 2004 for his rebuttal and comments.  He submitted a 12-page rebuttal on 7 January 2005.

8.  Meanwhile, on 13 December 2004, the applicant submitted a request for a commander’s inquiry to be conducted in regards to his “Relief for Cause” OER to the Corps Commander at Fort Bragg, North Carolina.  On 21 January 2005, the Commanding General, XVIII Airborne Corps dispatched a memorandum to the applicant informing him that he had conducted a commander’s inquiry and found no error, injustices or illegalities in his OER.  He also reiterated that the applicant had knowingly accepted a nominative assignment to one of the most prestigious rapid deployment forces within the Army and that he had failed to deploy with the unit and perform his mission.  He concluded that the OER was fair, accurate and legally sufficient.

9.  The 3rd Infantry Division deployed in January 2005 for its second tour in Iraq and returned to Fort Stewart in January 2006.

10.  On 20 April 2005, the applicant appealed the OER to the OSRB contending that the OER contained both substantive and administrative errors, that it was unjust and that it did not accurately reflect his performance or potential.  In the processing of the case, officials at the OSRB contacted the rating officials and the rater confirmed that the applicant had refused to sign the OER in the presence of the staff judge advocate.  Both rating officials opined that the OER was an accurate and fair appraisal of his performance.  The OSRB opined that there was sufficient basis to issue a relief for cause report and found that there was not sufficiently convincing evidence that the OER was inaccurate, unjust or that it did not adequately reflect his performance and potential.  The OSRB denied his appeal.  At the time the OSRB considered his appeal, he had been nonselected for promotion to the rank of colonel.

11.  On 31 August 2007, the applicant was honorably released from active duty (REFRAD) and was placed on the Retired List, effective 1 September 2007 in the rank of lieutenant colonel.  He had served 22 years, 5 months and 7 days of total active service and his DD Form 214 issued at the time of his REFRAD shows that he was awarded the Legion of Merit, the Bronze Star Medal, the Meritorious Service Medal, the Army Commendation Medal with “V” Device, the Army Commendation Medal (6th award), the Army Achievement Medal (5th award), the Southwest Asia Service Medal, the Global War on Terrorism Service Medal, the Korean Defense Service Medal, the Army Service Ribbon, the Armed Forces Reserve Medal, the Overseas Service Ribbon, the Kuwait Liberation Medal (Kuwait), the Kuwait Liberation Medal (Saudi Arabia), the Expert Infantryman Badge, the Ranger Tab, the Parachutist Badge, the Air Assault Badge and the Combat Infantryman Badge (CIB).  However, there are no orders in his OMPF to support the award of the CIB.       

12.  The applicant provides a self-authored statement as new evidence and argument and adds an additional request to be reconsidered for promotion to the rank of colonel.  In his request he outlines and highlights the same objections he made in his previous requests and contends that he is articulating the violations and improprieties associated with his case.  He contends that the OER did not meet the regulatory standard for a “Relief for Cause” report because there were no negative checked blocks and it was a “center of mass” report, that it was not properly served to him, that his rating chain failed to cite the reason for his relief, that he was not counseled prior to the relief, and that the report falsely states that he refused to sign the report.  He also contends that the commander’s inquiry was improper and that his rating officials improperly characterized his performance of duty to OSRB officials and that his chain of command deceived him during the entire process.  He has essentially not offered any new argument or evidence with his request for reconsideration. 

13.  Army Regulation 623-105, Officer Evaluation Reporting System, Paragraph 3-50, provides that a relief for cause 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 a superior authority and based on a decision that the officer has failed in his or her performance of duty.  In this regard, duty performance consists of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards shown in Part IV, DA Form 67-9.

14.  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 3-57 provided the basic rule applicable to modifications of previously submitted reports.  It stated, 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.  

15.  Chapter 6 of the same regulation contained the policies and procedures pertaining to managing the OER redress program.  Section III contained 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 paragraph 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.

16.  Army Regulation 600-8-29 prescribes the policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list.  It provides, in pertinent part, that officers chosen to participate on promotion selection boards should possess the professional characteristics and reflect the values that the Army considers to be of utmost importance.  Board members will not divulge details of the deliberative process (other than a generalized description of board procedures) before, during or after the board to outside parties, whether senior or subordinate to the member except as specifically directed by the Secretary of the Army or his authorized representative.    

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his OER does not meet the criteria for a “Relief for Cause” Report has been noted and found to lack merit.  While the applicant did not receive negative ratings and the OER does not state in specific language that he failed in his past performance as the Division G4, the fact-of-the-matter is that he did fail in his responsibilities to the Army as a field grade officer and logistician.  By requesting to be reassigned to another position prematurely, the applicant failed to perform his duties.  His rating chain simply gave him the benefit of any doubt by not saying that he had failed or quit.

2.  The evidence of record shows that the applicant sought and was accepted for a highly competitive nominative position as the Division G4 and the position was held open for a month to allow him to arrive from Korea.  However, it appears, based on the memorandums prepared by the chief of staff and staff judge advocate, that shortly after arriving at the Division and discovering that the Division was scheduled to deploy back to Iraq and the workload that was involved, the applicant requested to be removed from the position and placed in a position that would not require him to be separated from his family for an extended period of time.  Consequently, he was relieved of his duties and received another permanent change of station to Fort Monroe.  

3.  As a result of the applicant’s request to be removed from his position, the Division was left with no G4, at a time it was preparing to deploy back to Iraq and had to fill the position with the Deputy G4, an officer who was junior in date of rank to the applicant.  While the applicant may believe that he did not fail, he did in fact fail his unit and the Army when he knowingly sought the position and after assuming the position asked to be reassigned. 

4.  Selfless service involves placing the Army priorities above one’s own and in this case, the applicant chose the latter.  While his chain of command was very understanding of his desire to be removed from the position, they had an obligation to the Army to document the reason for his removal from such a prestigious and career enhancing position, especially given the amount of time and effort expended to fill the position.

5.  Although there were administrative errors on the OERs that were subsequently corrected before the OER was forwarded for filing in his OMPF, there is sufficient evidence to show that the OER was properly referred to the applicant before it was filed.  There is also sufficient evidence to establish that the applicant was afforded due process through the appellate process, which included a commander’s inquiry conducted by a lieutenant general, the OSRB, and two previous reviews by this Board, all of which found no clear and compelling evidence to support the applicant’s assertion that the contested OER was unjust or inequitable.

6.  It is also noted that Army Regulation 623-105, paragraph 3-50, does not actually require a negative rating on all of the factors listed in Part IV of the OER. In other words, the officer may have fulfilled his duties up to his removal, which would warrant positive ratings in all factors of that block.  In this respect, his relief was not performance based.  Where he failed was in his request to quit.  That, in and of itself, created a basis for removal.  Not only did the applicant not live up to his promise to serve his entire tour, he burdened his unit, both unacceptable consequences caused by his choice.    

7.  The applicant’s contention that the contested OER undoubtedly caused him not to be selected for promotion to the rank of colonel has been noted; however, it is a well known fact that promotion boards do not divulge the reasons for their selections and nonselections of officers in the zones of consideration.  Therefore, his contention is at best speculative on his part.

8.  Although it is unfortunate that he was not selected for promotion, it is also a well known fact that in all selection boards there are many very qualified officers who are not promoted due to the strength ceiling, which limits the number of eligible officers that may be selected.  Non-selection for promotion does not necessarily mean that an officer is substandard; it in many cases simply means that there are more people than there are allocations to promote.

9.  The applicant’s contention that he was not counseled prior to his being relieved has also been noted and also found to lack merit.  The applicant is the one who asked to be removed from his position.  If he did not want to be relieved, he had the opportunity to present his position or change his mind at the time he had an audience with the relieving official (a major general).  However, it is apparent that the rating chain did what was necessary, given the circumstances of this case.

10.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.           

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 AR20060010667, dated 26 June 2007.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.





      ___        XXX                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080005711



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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