IN THE CASE OF:	  

		BOARD DATE:	        16 JUNE 2009

		DOCKET NUMBER:  AR20080019992 


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 two Officer Evaluation Reports (OER) for the rating periods 1 July 2002 through 30 June 2003 and from 1 July 2003 through 8 December 2003 [here after referred to as contested report 1 and contested report 2], and a General Officer Memorandum of Reprimand (GOMOR) received on 2 September 2004 be removed from his Official Military Personnel File (OMPF).  Additionally, he requests promotion to lieutenant colonel (LTC) and to be placed back on active duty either with the Regular Army (RA) or on an Active Guard Reserve (AGR) status.
 
2.  The applicant states, in effect, the contested reports are substantively and procedurally flawed, the GOMOR was not warranted, the investigation was without merit, and he has been passed over for LTC twice due to unsubstantiated false claims.

3.  The applicant provides copies of awards, email communications, his DD Form 214 (Certificate of Release or Discharge from Active Duty), witness list, Inspector General (IG) report, letters of recommendation, copies of the contested reports with support forms, list of chain of events, sworn statements, orders, biographical sketch, special inquiries, active duty selection letter, waiver statement, counseling statement, current letters of support, a copy of the GOMOR, rebuttal statement, the filing instructions, and a copy of the Department of the Army Suitability Evaluation Board (DASEB) results in support of this application.



CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he was promoted to major (MAJ) on 25 June 2000 in the U.S. Army Reserve (USAR) and held this rank at the time he received the contested reports and GOMOR as an AGR officer.

2.  The first contested report is an annual report for the period 1 July 2002 through 30 June 2003 with the applicant's principal duty title as Head Nurse EMT [Emergency Medical Technician].

3.  The rater signed this report on 4 May 2004 and the senior rater (SR) signed the report on 5 May 2004.  The applicant authenticated this report on 5 June 2004.

4.  In Part Va (Performance and Potential Evaluation [Rater] – Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater assessed the applicant as "Satisfactory Performance, Promote."

5.  In Part VIIa (Senior Rater – Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the SR assessed the applicant as "Do Not Promote."  In Part c (Comment on Performance/Potential) the SR stated, in part, that the applicant "has several issues, which are not consistent with the position of a field grade officer."  The SR concludes with "I question his ability to provide leadership and independent, unsupervised, decision making.  Do not promote."

6.  The second contested report is a permanent change of station (PCS) report for the period 1 July 2003 through 8 December 2003.  The applicant's principal duty title for this report was also as Head Nurse EMT.

7.  The rater signed this contested report on 4 May 2004 and the SR signed on 
5 May 2004.  The applicant authenticated the report on 5 June 2004.

8.  In Part IVb.3 (Performance Evaluation – Professionalism (Rater) - Leader Attributes/Skills/Actions – Actions - Influencing) of contested report 2 an "X" was placed in the "No" block for "Communicating."  

9.  In Part Va, the rater assessed the applicant as "Other" and commented, in part, that the applicant's "difficulty with communication has reflected poorly upon the unit and violated the trust of the Command Staff.  Overall, he does not exhibit the level of performance expected of a field grade officer.  Do not promote."

10.  In Part VIIa, the SR assessed the applicant as "Other" and commented, in part, that the applicant "continues to exhibit an inability to work at the field grade officer level."  The SR concludes "Regardless of his background or skills as an Army Nurse, he is not meeting the responsibilities of a full-time unit ARG (sic) Soldier, and I feel the Army would be best served by his removal from the AGR system."

11.   Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, states that evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or 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.  The burden of proof rests with the applicant.

12.  The applicant received a GOMOR on 2 September 2004 for sexual harassment and fraternization.  

13.  An investigation established the applicant engaged in a pattern of sexually suggestive conduct towards a female CPT verbally and via email communication. The investigation also determined the applicant had engaged in similar sexually suggestive conduct towards a female SGT by rubbing up against her in the copier room located at his place of work.  Additionally, it was established he engaged in a social relationship with a subordinate male SGT, by going out to dinner and to a "strip club" with the SGT and the applicant's wife.

14.  The DASEB made a decision to deny the appeal on 6 February 2008 and issued a memorandum to the applicant.  It was determined there was no evidence that the GOMOR was improper or imposed incorrectly, there was not sufficient evidence to show that the intent had been served, and there was no evidence that the applicant expressed remorse regarding his actions.  Therefore, by unanimous vote, the DASEB determined the overall merits of the applicant's case did not warrant the applicant's requested relief.

15.  Army Regulation 600-37 (Unfavorable Information) states that unfavorable documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.
16.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a standby promotion advisory board may only be based on erroneous nonconsideration or material error which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's nonselection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for nonselection, except where an individual is not qualified due to noncompletion of required military schooling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the contested reports and GOMOR should be removed from his record due to administrative and substantive errors. 

2.  The applicant has not provided clear and compelling evidence which shows that the ratings on the contested reports were in error or that they were not considered opinions and objective judgments of the rating officials at the time the reports were rendered. 

3.  The applicant has not provided clear and convincing evidence that shows the GOMOR was rendered in error, is unjust, or otherwise flawed.  

4.  The applicant has not provided clear and compelling evidence that a material error exists that caused the applicant's non-selection for promotion.  

5.  Based on the foregoing there is no basis to grant the applicant's requested relief.

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.


      _______XXX_______________
               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)                                         AR20080019992



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ABCMR Record of Proceedings (cont)                                         AR20080019992



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