IN THE CASE OF:	  

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080009892 


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:

1.  The applicant requests, in effect, that a Relief for Cause Officer Evaluation Report (OER) covering the period 27 September 2003 through 19 May 2004, be removed from his Official Military Personnel File (OMPF); and that his retired grade be changed to lieutenant colonel (LTC).  

2.  The applicant states, in effect, that he has served on active duty for 20 years, moving rapidly through the officer ranks, which included being selected for promotion to major (MAJ) below the zone.  He states he received 7 OER's as a LTC, which indicate satisfactory performance in that grade, and the only exception was a Relief for Cause OER he received from a British colonel (COL) for a 5 month period while serving in Belgium during the Iraq conflict.  He claims he was ordered to sign counseling statements for the relief OER after the fact, and states that the evidence against him was unsubstantiated and would never stand up in our civilian judicial system.  He further states that it is his belief that he did not receive due diligence in this matter and that his punishment is not commensurate with the alleged offenses.

3.  The applicant provides the following documents in support of his application:  Self-Authored Statement; Employment History Summary; Officer Record Brief (DA Form 4037); Agent's Investigation Report (CID Form 94); and OERs 
(DA Forms 67-9).


CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he received the relief OER in question in August 2004.  The report covered the period 27 September 2003 through 19 May 2004, and evaluated the applicant as the Deputy Special Operations Division Chief, United States Army (USA) North Atlantic Treaty Organization (NATO), Supreme Headquarters Allied Powers Europe (SHAPE), Belgium.  In Part IVa (Army Values) the rater, a United Kingdom (UK) colonel, checked the "No" block in response to questions 1 (Honor), 2 (Integrity), 3 (Courage), 6 (Selfless-Service) and 7 (Duty).  

2.  In Part IVb (Leader Attributes/Skills/Actions) the rater checked the "No" block in response to b1 (Attributes) in response to question1 (Mental).  In part b2 (Skills) the rater checked the "No" block in response to questions 1 (Conceptual) and 3 (Technical).  In Part b3 (Actions) the rater checked the "No" block in response to questions 1 (Communicating), 2 (Decision Making), 4 (Planning), 
6 (Assessing), 8 (Building) and 9 (Learning).

3.  In Item Part V (Performance and Potential Evaluation) the rater placed the applicant in the 3 block (Unsatisfactory Performance-Do Not Promote).  The rater provided comments supporting this rating in which he stated, in pertinent part, that the applicant struggled to achieve professional credibility, found it difficult to adjust to the demands of a multi-national strategic level Headquarters, struggled to meet the intellectual challenges and to demonstrate the necessary mental acuity and standards of oral and written expression, and eroded his credibility with issues of personal conduct culminating in serious errors of judgment.  The rater further stated that after counseling there was some upturn in the applicant's performance; however, the applicant was unable to sustain this upturn and through his own actions forfeited his credibility, which led to his relief.  

4.  In Part VII(Senior Rater) the senior rater, a United States Air Force (USAF) major general, placed the applicant in the three block (Do Not Promote) in Part VIIa (Evaluate the Rated Officer's Promotion Potential) and provided comments supporting this below center of mass evaluation.  The senior rated stated that applicant's professional difficulties with his appointment had been accompanied by issues in his personal conduct which compounded the problem.  He further stated he was satisfied that the lapses and errors of judgment in both his professional and personal conduct are below the standards expected of a LTC and justified his relief for cause. 


5.  The applicant acknowledged receipt of the OER and submitted a statement indicating that it was unfortunate that his honor, integrity and courage had been questioned.  He stated that working with Soldiers from different nations is always demanding and standard United States Army procedures were not in place.  He stated that although he has 16 years on active duty developing and refining Special Operations tactical and operational skill sets, unfortunately this did not prepare him for a strategic assignment with the NATO.  He stated that unresolved marital problems caused him to arrive at his assignment mentally unprepared to overcome the challenges the NATO assignment posed and his job performance reflected this.  He further stated that he believed that he could return to the tactical and operational level and serve professionally through the remainder of his career.  

6.  On 20 October 2004, while he was serving as a LTC at Shape, Belgium, the applicant was notified that the 21st Theater Support Command (TSC) commander, a major general (MG), was considering whether he should be punished under Article 15 of the UCMJ for violating Articles 107, 121, and 
133 of the UCMJ by committing the following offenses:  signing an official document, which he knew to be false, with the intent to deceive; for stealing more than $7000.00 by knowingly receiving approximately $1000.00 per month in unauthorized housing allowance; and for wrongfully and dishonorably misusing a Government credit card issued to him for official travel by paying for personal items and services with said card for unofficial expenses,

7.  On 20 October 2004, the applicant elected not to demand a trial by 
court-martial, and instead chose for the matter to be handled by the 21st TSC commander at a closed hearing.  

8.  On 20 October 2004, the 21st TSC commander, after having considered all matters presented in defense, mitigation and/or extenuation at a closed hearing, imposed punishment in the form of a forfeiture of $3281.00 of pay per month for two months, and he directed that the Article 15 be filed in the Performance (P) portion of the applicant's OMPF.  The applicant elected not to appeal the punishment (Article 15).  

9.  On 8 November 2005, the applicant received a notification of initiation of elimination.  This notification stated that the applicant had been identified by the Fiscal Year 2006 Army Combat Arms Lieutenant Colonel-Level Command Board to show cause for retention on active duty under the provisions of Army Regulation 600-8-24, paragraphs 4-2b(5) and (8) due to misconduct, moral or professional dereliction.  

10.  In the elimination notification, the applicant was further informed that he must acknowledge receipt of notification in writing and elect to either submit his resignation in lieu of elimination, request discharge in lieu of resignation, or submit a rebuttal or a declination statement and request appearance before a Board of Inquiry (BOI) no later than 13 December 2005.

11.  On 21 September 2006, as clarified on 7 February 2007, a BOI recommended that the applicant be eliminated from the United States Army based on misconduct, moral or professional dereliction, with an honorable discharge. 

12.  On 16 February 2007, the Department of the Army (DA) Board of Review for Eliminations, after having reviewed the BOI, found that the Government had established by preponderance of the evidence that the applicant committed the offenses of fraud and larceny of Government funds when he submitted Basic Allowance for Housing (BAH) paperwork which he knew to be false, failed to obey lawful orders and regulations when he misused his Government Purchase Card for personal expenses, committed the offense of Government Purchase Card fraud when he failed to make timely payments to his official travel account, missed movement for an operational exercise to Mongolia from Korea commencing on 8 May 2006, was derelict in his duties during his Temporary Duty (TDY) to Mongolia commencing on 8 May 2006, due to the influence of alcohol, and was disrespectful to the Mongolia Mission officer in charge during his TDY to Mongolia commencing on 8 May 2006.  The Board recommended the applicant be retained in the United States Army with reassignment.

13.  On 20 February 2007, the Acting Deputy Assistant Secretary (DASA), Army Review Boards, approved the recommendation and returned the proceedings of the DA Board of Review for Eliminations for appropriate action.  The Acting DASA further directed that if the applicant were not promoted to colonel prior to retirement, his retirement application would be forwarded to the Army Grade Determination Review Board (AGDRB) and Grade Determinations.  

14.  On 25 June 2007, the applicant submitted his request for Voluntary Retirement for 31 December 2008.

15.  On 24 October 2007, after review by the AGDRB, the Acting DASA, Army Review Boards, reviewed the applicant's request for voluntary retirement and directed the applicant be retired in the grade of MAJ if his retirement was approved.  


16.  United States Army Installation Management command, Headquarters, United States Army Garrison, Fort Bragg, North Carolina, Orders Number 
318-0257, dated 14 November 2007, released the applicant from active duty effective 31 December 2007, and placed him on the Retired List on 1 January 2008, in the rank of MAJ.

17.  Army Regulation 623-105 prescribes the policies and procedures pertaining to the Officer Evaluation System (OES) and Officer Evaluation Reporting System (OERS).  It also provides 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.

18.  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.  

19.  Chapter 6 of the OER regulation contains the policies and procedures pertaining to managing the OER redress program.  Section III contains guidance on OER appeals and paragraph 6-10 outlines the burden of proof that must be met to support a successful OER appeal.  It states 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. 


20.  Army Regulation 15-80, (Army Grade Determination Review Board and Grade Determination) establishes' policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations. The AGDRB is composed of three Army colonels (0-6) on active duty, who each independently review grade determination requests and make recommendations to the Deputy Assistant Secretary of the Army (DASA), Review Boards (RB), a civilian Senior Executive Service (SES) director, who makes the final decision in the case.  

21.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the policy and procedures for officer separations and discharges.  Paragraph 6-17 states, in pertinent part, in cases involving misconduct or moral or professional dereliction, the retirement application will be forwarded to the AGDRB for a recommendation as to the highest grade that the officer has served in satisfactorily while on active duty.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, in order to justify deletion or amendment of an evaluation report, there must be evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  The evidence of record and independent evidence provided by the applicant fail to provide clear and compelling evidence of an error or injustice related to the evaluations rendered or the filing of the OER in question.  Further, absent evidence to the contrary, it appears the evaluations rendered represent the considered opinions and objective judgment of the rating officials at the time of preparation. 

2.  In addition, the applicant's personal conduct, as evidenced by the offenses documented in the Article 15 he accepted on 20 October 2004, which he did not appeal, also provide support for the OER in question.  As a result, the regulatory burden of proof necessary to support removal of the OER has not been satisfied in this case, and it would not be appropriate to grant this portion of the requested relief.   

3.  The applicant's contention that he should have been retired in the grade of LTC was also carefully considered.  However, the evidence of record confirms the Acting DASA, Army Review Boards, in his approval of the recommendation of the DA Board of Review for Eliminations, directed that if the applicant were not promoted to colonel prior to retirement, his retirement application would be forwarded to the AGDRB and Grade Determinations.  As a result, his retirement was reviewed by the AGDRB and subsequent to this review, the Acting DASA, Army Review Boards, directed the applicant be retired in the grade of MAJ.  

4.  In view of the applicant's misconduct as a LTC, as evidenced by the Article 15 he accepted in October 2004, and given his retired grade of MAJ was properly determined as a result of an AGDRB review and the approval of the Acting DASA, Army Review Boards, in accordance with the applicable law and regulation, there appears to be no error or injustice related to his retired grade.  As a result, it would not appropriate or serve the interest of justice and/or equity to grant the requested relief. 

5.  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

___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)                                         AR20080009892



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ABCMR Record of Proceedings (cont)                                         AR20080009892


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