IN THE CASE OF:	  

		BOARD DATE:	  20 August 2009

		DOCKET NUMBER:  AR20080013359 


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 the removal of an officer evaluation report (OER) ending 26 March 2004 and a general officer memorandum of reprimand (GOMOR) dated 14 April 2004 from his official military personnel file (OMPF) and reinstatement to active duty and promotion reconsideration to the rank of major.

2.  The applicant states, in effect, that a subsequent commander's inquiry found that the investigation conducted under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) that led to his relief for cause OER and GOMOR was faulty in that it did not receive a legal review and that it did not take into account the rebuttal he submitted.  He goes on to state that the succeeding commanding general (CG) approved the findings and recommendations which concluded that the OER and GOMOR were flawed and should be removed.  However, the Department of the Army Suitability Evaluation Board (DASEB) mistook a legal review that was conducted for his GOMOR for a legal review of the Army Regulation 15-6 investigation and did the same for the rebuttal he submitted to the Army Regulation 15-6 investigation.  However, despite the fact that he met the requirements to have the GOMOR and OER removed, the DASEB denied his request to have them removed and he was discharged 6 months before reaching 18 years of service due to being twice non-selected for promotion.

3.  The applicant provides a two-page memorandum explaining his application, a copy of a memorandum dated 26 July 2005 appointing an investigating officer at Fort Huachuca, Arizona, to conduct a commander's inquiry, a copy of a memorandum dated 16 November 2005 containing the findings and recommendations of the commander's inquiry, a copy of a DASEB Decision Summary, a copy of a memorandum dated 1 December 2005 providing advice to the CG on the disposition of the commander's inquiry from the Fort Huachuca Staff Judge Advocate (SJA), and a copy of a memorandum from the SJA Attorney-Advisor providing a legal review of the commander's inquiry.

CONSIDERATION OF EVIDENCE:

1.  The applicant had 6 years, 4 months, and 24 days of prior active enlisted service when he was commissioned through the Reserve Officers' Training Corps as a U.S. Army Reserve second lieutenant on 12 May 1995.  He entered active duty on 21 May 1995 as a military intelligence (MI) officer and continued to serve as an MI officer throughout his service.  He was promoted to the rank of captain on 1 July 1999.

2.  On 1 May 2002, he deployed to Afghanistan as a company commander of a headquarters and headquarters company of the Combined Joint Task Force-180 in support of Operation Enduring Freedom.

3.  In December 2002, he received a GOMOR in which he was reprimanded for his conduct surrounding an altercation he had with a noncommissioned officer (NCO) under his command in which he divested his self of command authority by excessively cursing at and physically removing the NCO from his office.  The imposing general officer directed that the GOMOR be filed in his OMPF on 10 December 2002.

4.  He departed Afghanistan on 15 January 2003 and was transferred to Fort Bragg, North Carolina, for assignment as a company commander in the XVIII Airborne Corps.

5.  On 9 May 2003, he was transferred to Company D, 344th MI Battalion, at Goodfellow Air Force Base, Texas, with duty at Corry Station, Florida, as a company commander.

6.  Although not in the available records, there is evidence that an informal investigation under Army Regulation 15-6 was initiated to determine if the applicant was using his government computer for on-line betting.  A legal review was conducted of the investigation on 5 March 2004 at Fort Hood, Texas, and the applicant (who was suspended from his duties at the time) was provided a copy of the investigation for rebuttal and/or comment on 11 March 2004.  He was provided a suspense date of 24 March 2004 to respond to the investigation results and elected to submit his rebuttal after consulting with counsel.

7.  On 24 March 2004, he submitted a three-page rebuttal with enclosures to the Army Regulation 15-6 investigation and contended that the investigation contained numerous substantive inaccuracies and was not supported by the facts.  He also contended that the investigation was incomplete and did not fully consider all available evidence.  He requested reinstatement to command and no GOMOR or command-directed mental evaluation.

8.  On 25 March 2004, the applicant was counseled by his commander who advised him that he was officially relieved as the company commander.  She also advised him that she had reviewed his rebuttal to the Army Regulation 15-6 investigation and he had provided no information that discounted any of the findings.  She also stated that he had provided untruthful information regarding his whereabouts on 17 February 2004.  She further advised the applicant that orders were being processed to transfer him to Fort Huachuca.

9.  On 8 April 2004, the applicant received a relief-for-cause OER covering the period 15 January to 26 March 2003.  In Part V (Performance and Potential Evaluation) his rater gave him a rating of "Unsatisfactory Performance, Do Not Promote."  The rater commented that the applicant was relieved for improper use of a government computer for on-line gambling.  His senior rater gave him a rating of "Do Not Promote" and indicated that the applicant lacked any future potential for promotion.  The OER was referred to the applicant and he submitted matters in his own behalf.

10.  On 12 April 2004, the SJA at Fort Huachuca prepared a memorandum for the CG at Fort Huachuca advising him that the chain of command recommended that the applicant be issued a GOMOR for accessing internet gambling sites using a government computer and indicated that the applicant was submitting matters in his own behalf under Tab B.  The enclosures to that memorandum included the GOMOR, the applicant's rebuttal, the commander's recommendations, and the Army Regulation 15-6 Report.

11.  On 12 April 2004, the CG at Fort Huachuca issued the applicant a GOMOR for inappropriate conduct between 21 January 2004 and 23 February 2004.  He indicated he based his decision on the informal Army Regulation 15-6 investigation and a follow-up commander's inquiry, both of which were provided to the applicant under separate cover.  The applicant elected to submit comments within 7 calendar days.

12.  On 21 April 2004, the applicant submitted a memorandum in his own behalf wherein he asserted that he did not commit the offenses for which he was accused and went on to explain his version of what occurred.  He also contended that his battalion commander had not informed the brigade commander that the allegations made against him came from individuals involved in an on-going commander's inquiry and that his battalion commander overlooked relevant statements he provided from other members of his unit.  He requested an opportunity to speak to the CG regardless of the outcome and further requested that his report date to Fort Huachuca be delayed to 26 June 2004 so that he could assist with his terminally ill father-in-law and be present for the birth of his daughter because his wife was 8 months pregnant.  On 5 May 2004, he was transferred to Fort Huachuca and in June 2004 a new CG assumed command at Fort Huachuca.

13.  On 26 July 2005, an officer was appointed by the CG to conduct a commander's inquiry into the allegations made by the applicant that the Army Regulation 15-6 investigation was improperly conducted, that his raters lacked objectivity, and that the commander's inquiry was improperly used to make negative comments on his OER.  The appointment memorandum directed the investigating officer as a minimum to ascertain if the Army Regulation 15-6 investigation was used as a basis for the applicant's relief-for-cause OER and if it was provided to the applicant prior to the adverse action, if a legal review was ever conducted on the Army Regulation 15-6 investigation regarding the applicant's gambling activities, if the chain of command complied with Army Regulations during the relief process, if the applicant's Article 31 rights were violated at any time, if the applicant provided a rebuttal to the relief-for-cause OER and if it was provided to the chain of command prior to the relief action, and if the relief was conducted in accordance with Army Regulations.

14.  On 16 November 2005, the investigating officer (a colonel) dispatched a memorandum to the CG indicating his findings and recommendations of the commander's inquiry.  The investigating officer indicated that the Army Regulation 15-6 investigation was used as the basis for the GOMOR and the relief-for-cause OER and the investigation was provided to the applicant before adverse action was taken.  However, it appeared that the applicant's initial rebuttal was not included in the final packet of the relief-for-cause OER that included the Army Regulation 15-6 investigation when reviewed by the chain of command.  He also stated that there was no evidence that a legal review of the Army Regulation 15-6 investigation was conducted and therefore it was procedurally flawed because a legal review was required and none could be found.  He went on to state that the applicant's Article 31 rights were not violated and it appeared that the applicant did provide a written rebuttal but it was not found in the packet and most likely was not available for consideration by the brigade commander and the CG.  He opined that the relief for cause probably was not appropriate because it was based on a flawed Army Regulation 15-6 investigation.  He recommended that either a new Army Regulation 15-6 investigation be conducted or that the relief-for-cause OER be voided and a new OER issued.

15.  The CG approved the Army Regulation 15-6 investigation and directed that another Army Regulation 15-6 investigation would not be conducted.  However, the CG authored a memorandum to the U.S. Army Human Resources Command indicating that the OER and the GOMOR relied on an investigation conducted under Army Regulation 15-6 which was faulty because it did not receive a legal review and it did not take into account the rebuttal submitted by the applicant.  The CG requested that the recent commander's inquiry be considered as part of the OER correction process.

16.  On 27 February 2006, the applicant appealed the relief-for-cause OER to the Officer Special Review Board (OSRB) contending that the Army Regulation 15-6 investigation was flawed because it did not receive a legal review and because his rebuttal was not provided to the brigade commander and CG.  His appeal was denied by the OSRB on 21 April 2006.

17.  Meanwhile, on 28 March 2006 and 3 April 2006, he appealed to the DASEB to transfer the two GOMORs to the restricted section of his OMPF.  The DASEB denied his appeal on 14 April 2006.

18.  On 1 July 2006, the applicant was honorably discharged under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges) due to non-selection for permanent promotion.  He had served 17 years, 6 months, and 4 days of total active service and was paid $118,122.04 in separation pay.

19.  A review of the applicant's OMPF shows that a copy of the legal review that was conducted on the original Army Regulation 15-6 investigation at Fort Hood, Texas, is filed with the applicant's appeal to the OSRB.

20.  A review of the applicant's OMPF failed to reveal a copy of the original Army Regulation 15-6 investigation.  However, a memorandum prepared on 12 April 2004 by the Fort Huachuca SJA to advise the CG regarding the issuance of a GOMOR to the applicant makes reference to the applicant's rebuttal to the investigation in paragraph 2d.  It also indicates that the investigation was provided as an enclosure.

21.  A further review of the applicant's OMPF shows that prior to the relief-for-cause OER the applicant received an annual OER ending on 15 January 2004 from the same rating chain that evaluated him as a company commander.  The report was a center-of-mass report with recommendations for promotion and selection for further schooling.  The report contains only praise of the applicant's performance and potential and provides no negative comments.

22.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, prescribed the policies and tasks for OERs.  It provides, in pertinent part, that a relief-for-cause OER will be referred to the rated officer for acknowledgement and comment by the senior rater before being sent to Headquarters, Department of the Army.  The rated officer may comment if he or she believes that the rating or remarks are incorrect.  However, the rated officer's comments do not constitute an appeal or a request for a commander's inquiry.

23.  Army Regulation 623-105 also established the policies and procedures for the OER system.  Paragraphs 3-57 and 6-6 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer is presumed to be administratively correct and to have been prepared by the properly designated rating officials at the time of preparation.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation had it been known at the time the OER was prepared.  Paragraph 3-24 provides that each report will be an independent evaluation of the rated officer for a specific rating period and will not refer to prior or subsequent reports.  Paragraph 3-27a provides that no reference will be made to an incomplete investigation (formal or informal) and that references will only be made to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the report to the Department of the Army.  This restriction is intended to prevent unverified derogatory information from being included in evaluation reports.  Each report must stand alone.

24.  Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  It provides, in pertinent part, that the regulation does not require that an investigation be conducted before adverse action, such as relief for cause, can be taken against an individual.  However, if an investigation is conducted using the procedures of the regulation, the information obtained, including findings and recommendations, may be used in any administrative action against an individual.  It further provides 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 governing evaluation reports provide the necessary procedural safeguards.

25.  Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  It states, in pertinent part, that a letter, regardless of the issuing authority, may be filed in the OMPF only upon the order of a general officer or officer having general court-martial jurisdiction over the recipient.  The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.  However, before a letter may be filed in the OMPF, it must be referred to the recipient concerned for comment, it must include reference to the intended filing of the letter, and must be signed by an officer authorized to direct such filing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the relief-for-cause OER ending on 26 March 2004 and the GOMOR dated 14 April 2004 should be removed from his OMPF and that he should be reinstated to active duty and promoted to the rank of major because a subsequent investigation conducted under Army Regulation 15-6 determined that the first investigation was faulty has been noted and it appears to lack merit.

2.  It also appears that the second Army Regulation 15-6 investigation conducted at Fort Huachuca over 1 year after the initial investigation that was conducted in Florida may have been flawed because the investigating officer opined that there was no legal review of the initial investigation conducted.  However, evidence contained in the applicant's OMPF shows that a legal review was conducted at Fort Hood, Texas.  The investigating officer also opined that it appeared that the applicant's rebuttal of the initial investigation was not provided to the brigade commander and the CG; however, there is evidence in the available records to show that the rebuttal was provided to the CG at the time he was considering whether to issue the applicant a GOMOR which contradicts the findings of the second investigation.

3.  While the applicant has not provided and the available records do not contain a copy of the original Army Regulation 15-6 investigation, the regulations governing both the OER and the GOMOR provide separate procedural safeguards for each of those actions with regard to an individual's rights.  Accordingly, there was no requirement to refer the investigation to the applicant before either of those actions was accomplished.  However, it appears that the investigation was referred to the applicant and that his rebuttal was provided to the chain of command for review.  It also appears that his rights were protected with regard to the safeguard procedures for both the OER and the GOMOR.

4.  Accordingly, there appears to be no basis to remove either the OER or the GOMOR in question.

5.  In order to justify correction of a military record the applicant must show 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)                                         AR20080013359



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ABCMR Record of Proceedings (cont)                                         AR20080013359



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