IN THE CASE OF:	  

		BOARD DATE:	  9 October 2008

		DOCKET NUMBER:  AR20080010760 


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 that a General Officer Memorandum of Reprimand (GOMOR), dated 3 October 2003, and a DA Form 67-8 (Officer Evaluation Report (OER)), for the period ending 16 January 2004, be removed from his Official Military Personnel File (OMPF).  He further requests that he be reinstated on active duty as Captain (CPT), Chaplain Corps with all back pay and allowances. 

2.  The applicant states, in effect, that the GOMOR in his OMPF is false and without basis.  He wishes to be reinstated into his Chaplain position with back pay from 8 September 2004.  The applicant further states that he currently holds a top secret clearance and is in good standing on active duty as a Sergeant at Fort Huachuca, Arizona.  He continues that he came back into the Army on the knowledge and good faith that the GOMOR had been removed or found to be without basis.  He was never charged or found guilty of any impropriety and continued to serve as a Chaplain until he was honorably discharged in September 2004.

3.  The applicant states he has since been approved for a direct commission in Military Intelligence but had it pulled after he was accessioned in November 2007.  He now had two commissions pulled because of the illegal GOMOR that has slandered his name both within and outside the military.  

4.  The applicant states that the OER that is in his OMPF is a falsified document that was placed in his records four months after he received his honorable discharge.  He states the OER is false for the following reasons:  a) The commanders involved stated they had his endorsement removed – this is factually and morally false; b) He was not under this command for 90 days prior to being moved to the Installation Chapel and then to the 1st Battalion, 69th Armor, 2nd Brigade, 3rd Infantry Division (ID) – where he finished out his time until his discharge; c) He was never relieved for cause at that point.  He continued to do his ministry until his discharge; and d) He never accepted or signed for the OER – it was placed into his record after he was discharged.  The applicant feels that the only way to remedy this damage without further action on his part outside of the military is to reinstate him with full equity and benefits to where he was before this injustice happened.

5.  The applicant provides the GOMOR; his rebuttal, dated 20 October 2003; seven letters of support; the contested OER; a Directive of Suspension from Pastoral Duties memorandum, dated 19 August 2003; a DD Form 214 (Certificate of Release or Discharge from Active Duty), with the period ending 
7 September 2004; a DA Form 1059 (Service School Academic Evaluation Report), dated 11 April 2003; a memorandum from the Post Chaplain, 3rd ID, dated 26 November 2003; a memorandum to the Department of the Army Office of the Chief of Chaplains, dated 26 January 2004; a memorandum from the Department of the Army Office of the Chief of Chaplains, dated 8 January 2004; a Headquarters, 2nd Recruiting Brigade memorandum, dated 28 April 2007; an appointment list from the Officer Personnel Management Directorate, Reserve Appointments Branch, dated November 2007; a letter from the U.S. Army Human Resources Command – St. Louis (USAHRC-STL), dated 13 December 2007; a two-page email message, dated 18 December 2007; a letter addressed to his Congressional Representative, dated 18 January 2007; a Request for Commission memorandum, dated 21 September 2007; Headquarters, 171st Infantry Brigade Permanent Orders 268-01, dated 5 September 2007; Headquarters, Columbia Recruiting Battalion Permanent Orders 336-02, dated 
1 December 2000; a memorandum from the Office of the Staff Judge Advocate (SJA), Fort Huachuca, Arizona; and a letter from the Office of the Inspector General, Fort Huachuca, Arizona, dated 4 April 2008, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame 
provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Reference the applicant's request to have the contested GOMOR, dated 
3 October 2003, removed from his OMPF.  Paragraph 2-5, Section II, Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider any application if it determines all administrative remedies have not been exhausted.  In view of the foregoing, the ABCMR has forwarded the applicant's request for removal of the GOMOR to the Department of the Army Suitability Evaluation Board (DASEB) in accordance with procedures stated in Army Regulation 27-10 (Military Justice), paragraph 3-43.  Therefore, this issue will not be further discussed in this Record of Proceedings. 

3.  The applicant's requests for removal of the contested OER and reinstatment on active duty as a CPT, Chaplain Corps with all back pay and allowances will be considered by the ABCMR at this time.

4.  The applicant was appointed as a Reserve Commissioned Officer of the Army at the rank of CPT, Chaplain Corps, on 23 August 2002.  On 7 January 2003, he entered active duty.  He was assigned for duty as a chaplain with the 1st Battalion, 39th Field Artillery, 3rd ID.

5.  On 19 August 2003, the applicant was suspended from all pastoral duties associated with Victory Chapel by the Post Chaplain.  The Post Chaplain indicated that the applicant was to be investigated by proper authorities concerning alleged sexual misconduct.   The Post Chaplain directed that the applicant was not to engage in counseling of Soldiers, family members, or Department of Defense personnel until the suspension was lifted.

6.  On 26 November 2003, the Post Chaplain directed the applicant to report to "CH R_______ of the 2nd Brigade at once.  Until further notice by competent authority, you will be for duty according to the needs of the Commander, 2nd Brigade, 3rd Infantry Division." 

7.  In a letter dated 8 January 2004, the Presbyterian Council for Chaplains and Military Personnel withdrew the applicant's Ecclesiastical Endorsement for the Chaplaincy in the U.S. Army.  The letter stated that the withdrawal was without cause and at the request of the applicant.  


8.  On 26 January 2004, the applicant acknowledged receipt of notification of the loss of his endorsement and course of action option.  Four options were available to the applicant:  option 1 seek another ecclesiastical endorsement (officer has 90 calendar days to provide a new endorsement to the Department of the Army, Chief of Chaplains), option 2 apply for non chaplain duties, option 3 apply for voluntary retirement (if eligible), and option 4 submit a voluntary resignation.  However, the document shows that the applicant did not choose a course of action option.

9.  On 17 January 2004, the contested OER, a relief of cause OER, covering the period 12 April 2003 through 16 January 2004, was prepared.

10.  The rater stated that a Criminal Investigation Command (CID) investigation found probable cause to believe that the applicant committed assault upon a spouse.  As a result of this investigation the applicant received a GOMOR and was relieved of his ecclesiastical endorsement.  The rater continued that the applicant was relieved of his duties as the Battalion Chaplain following the loss of his ecclesiastical endorsement.  The rater stated that the applicant possessed no potential for promotion or further service in the U.S. Army.  

11.  The senior rater of the contested OER stated that the applicant's failure to follow orders in reference to family counseling was unacceptable and had caused severe damage in the trust between families in need and the leadership of the battalion.  The senior rater stated, "I would not recommend him to any position as an Army Officer or Pastor.  Chaplain C____ should not be retained as an Army Officer."  The applicant's OER was referred to him.  

12.  In a memorandum, dated 14 June 2004, the Commander, 1st Battalion, 39th Field Artillery stated that on 11 June 2004 "the Deputy Division Chaplain (MAJ) R______ W_______ met with CPT R_____ C____ to determine whether or not he intended to sign his OER with a closing date of 20040116.  CPT C____ stated that he did not intend to do so on the advice of his legal counsel.  CPT C____ has repeatedly refused to sign any draft of his OER again, on the advice of his counsel."

13.  There is no evidence in the applicant's records that shows he appealed the contested OER.

14.  The applicant was honorably discharged from active duty on 7 September 2004, under the provisions of Army Regulation 600-8-24, paragraph 5-5, by reason of (withdrawal of) ecclesiastical endorsement.

15.  On 1 August 2007, the applicant enlisted in the Regular Army in the rank of Sergeant (SGT)/E-5.

16.  On 21 September 2007, the applicant was recommended for direct commission in the rank of CPT as a military intelligence officer or any branch that met the standards of the Army.

17.  In a memorandum, dated 13 December 2007, the Chief, Appointments Branch, USAHRC-STL, returned the applicant's reappointment packet without action.  The memorandum stated the applicant's packet did not include a request for a moral waiver concerning his GOMOR.  The memorandum further stated
"As the moral waiver authority, I have reviewed the GOMOR and the removal of Ecclesiastical Endorsement noted on your DD 214.  At this time, any request for moral waiver will be disapproved and there will be no further processing of your packet."

18.  On 21 May 2008, the applicant sought assistance from the Office of the SJA, Fort Huachuca, Arizona.  The SJA stated that the applicant contends that the OER reflecting his performance during the period "21" April 2003 through "28" January 2004, incorporating the untruths detailed in the reprimand, renders the evaluation an inaccurate and unfair rendition of the character of his service during the rating period.  The SJA continued that the applicant was not afforded an opportunity to be notified as to the OER, nor the chance to address its referred nature.  Because the GOMOR was based upon patently false claims (subsequently disproven) and errors as to the status of then Chaplain C_____'s endorsement, the OER's conclusions incorrectly assess the applicant's duty performance and improperly portray his service and promotion potential.  The applicant reports that he was not relieved, nor ever had his credentials to qualify as a chaplain revoked.

19.  Army Regulation 623-105, in effect at the time established the policies and procedures for preparing, processing, and using the OER.  The regulation also provided that an OER accepted for inclusion in the official record of an officer was presumed to be administratively correct, to have been prepared by the proper rating officials and to have represented the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in appealing an OER rested with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  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 623-105, in pertinent part, stated that an OER was required when an officer was 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.  In this regard, duty performance will consist of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards shown in DA Form 67–9, Part IV.  These standards will apply to conduct both on and off duty.  The published rating chain at the time of the relief will render the report at the time of the relief; no other report will be due on this officer during this nonrated period.  Cases where the rated officer has been suspended from duties pending an investigation will be resolved by the chain of command as expeditiously as possible to reduce the amount of potential non-rated time involved.  Every effort will be made to retain the established rating chain, with the officer performing alternate duties under that rating chain, until the investigation is resolved.

21.  Army Regulation 623-105, in pertinent part, stated if the referral process was required, the senior rater would place an “x” in the appropriate box in part IId of the completed report.  The report would then be given to the rated Soldier for signature.  The rated Soldier could comment if he or she believed that the rating or remarks were incorrect.  The comments must be factual, concise, and limited to matters directly related to the evaluation on the OER; rating officials could not rebut rated Soldier’s referral comments.  The rated Soldier’s comments did not constitute an appeal.  Appeals were processed separately.  Likewise, the rated Soldier’s comments did not constitute a request for a Commander’s Inquiry.  Such a request would be submitted separately.

22.  Army Regulation 600-8-24 prescribes in pertinent part Department of the Army procedures and processes on the discharge of active duty list chaplains who lose professional qualifications due to the withdrawal of ecclesiastical endorsement.  In pertinent part, it states that chaplains are required to possess a valid ecclesiastical endorsement (DD Form 2088) from an authorized Religious Organization (RO) for both initial appointment and continuation on active duty.  If a RO endorsing agent withdraws a chaplain’s ecclesiastical endorsement, then the officer immediately loses his or her chaplain status and must cease all religious activities, such as, performance of rites, ceremonies, services, pastoral counseling, and so forth.  Once notified by the Office of the Chief of Chaplains (OCCH) of a withdrawal of ecclesiastical endorsement, a chaplain must select one of the options listed in Table 5-2.  However, if the chaplain fails to indicate an option to the OCCH within 30 days of notification, he or she will be immediately 
processed under this section for involuntary separation from active duty unless such separation is more appropriate for other reasons under chapter 4 (Eliminations).  The Secretary of the Army makes the final determination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be reinstated to CPT with all back pay and allowances.  Evidence of record shows he was appointed as a CPT in the Chaplain Corps, entered active duty, and performed duties as a battalion chaplain.  However, his pastoral duties were suspended and he was reassigned to a different unit pending an investigation.  There is no evidence in the applicant's records and the applicant has not provided evidence that shows the suspension was lifted or that he performed pastoral duties after being reassigned.  

2.  The 8 January 2004 letter from the Presbyterian Council for Chaplains and Military Personnel indicated that the applicant requested his ecclesiastical endorsement be withdrawn.  He acknowledged the loss of his ecclesiastical endorsement notification on 26 January 2004.  He did not select an option.  Therefore, the applicant could not perform his duties as a chaplain and, per regulatory guidance and because he had failed to select an option, he was honorably discharged on 7 September 2004.  The applicant has provided insufficient evidence that shows his discharge was improper.  Therefore, there is no basis on which to grant his request for reinstatement.    

3.  The applicant requests removal of the contested OER from his OMPF.  He contends that the commanders involved stated that they had his endorsement removed, he was not under this command for 90 days prior to being moved, he was never relieved for cause at any point, and that he never saw, accepted, or signed for the OER.  

4.  The applicant's rater indicated a CID investigation found probable cause to believe the applicant committed an indecent assault upon a spouse.  As a result, the applicant received a GOMOR and was relieved of his ecclesiastical endorsement.  The rater indicated in his narrative that he relieved the applicant of his duties as the Battalion Chaplain following the loss of his ecclesiastical endorsement.  

5.  In accordance with Army Regulation 623-105, an OER is required when an officer is relieved for cause regardless of the rating period involved.  Evidence shows that the Deputy Division Chaplain met with the applicant to determine 
whether or not he intended to sign the contested OER, and the applicant refused to sign it on the advice of his counsel.  The applicant has provided no evidence to show that the meeting with the Deputy Division Chaplain did not take place.

6.  There is no evidence and the applicant has not provided compelling evidence which shows the contested OER is substantively inaccurate and does not accurately reflect his performance or potential.  The applicant has failed to provide clear and convincing evidence to overcome the "presumption of regularity" and justify the removal of the contested OER.

7.  Based on the applicable regulations, the contested OER is correct as constituted and the applicant has failed to meet the burden of proof to justify removal of the contested OER.  Therefore, there is no basis for removal of the contested OER.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____XX____  ____XX____  ___XX_____  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.



      _________XXXX_____________
               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)                                         AR20080010760





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ABCMR Record of Proceedings (cont)                                         AR20080010760



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