IN THE CASE OF:	 

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090004783 


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 promotion to the rank of colonel or that his promotion to the rank of lieutenant colonel be back-dated to the year 2003, or sometime near the year that he was originally eligible, and that he be awarded all back pay and allowances as a result of this correction.  He further requests removal of any record of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) that was illegally submitted and administered and the removal of an Officer Evaluation Report (OER), dated 31 January 2000, from his official military personnel file (OMPF).

2.  The applicant states that his records contain derogatory information that prevented his promotion for many years.  He states that the performance portion of his OMPF still contains a general officer memorandum of reprimand (GOMOR), dated 18 March 2000, even after the Department of the Army Suitability Evaluation Board (DASEB) directed its removal.  He states that even though the DASEB directed that the DA Form 2627 be moved to the restricted portion of his OMPF, it should never have been forwarded to the U.S. Army Human Resources Command.  He states that the referred OER, dated 31 January 2000, was illegally submitted and that he should be promoted and awarded monetary compensation because the original charges against him have followed, haunted, and prevented him from obtaining a fully-realized professional military career.  He states that all of his peers have long since been promoted to colonel, many of whom have never served in combat.

3.  The applicant states that except for the original charges against him which have been proven to be bogus by other Army agencies and the experience he recently had whereby his last commander who held him in low regard because of his perceived legacy and his ill-will, he has had an outstanding career.  He states that he was on track to compete for general officer and that he was retaliated against because he witnessed an act of sexual harassment that was committed by a command sergeant major against a subordinate female sergeant.  He states that the command sergeant major was the close friend of The Adjutant General (TAG) of New Jersey and as a result he was furnished a GOMOR, a DA Form 2627, and a referred OER, all of which were completely illegal.  He states that much of his punishment was withheld until the "eleventh hour" so he could not fight it before TAG tried to fire him as an Active Guard Reserve (AGR) officer on his last day as TAG.

4.  The applicant provides a previous application to this Board, dated 31 March 2006, and the response to his application, dated 3 January 2007, along with the DASEB appeal packet and findings; a notification of eligibility for promotion as a Reserve commissioned officer not on active duty, dated 2 January 2007; and his appeal to the U.S. Court of Appeals for the Third Circuit No. 06-2051 against the State of New Jersey Department of Military and Veterans Affairs, National Guard of the United States:

	a.  a sworn statement, dated 30 August 1999;

	b.  a general counseling form, dated 17 December 1999;

	c.  Command Policy Letter 99-2 (Fraternization), dated 1 October 1999;

	d.  excerpts from Army Regulation 600-20 (Army Command Policy);

	e.  a sworn statement, dated 19 January 2000;

	f.  a GOMOR, dated 18 March 2000;

	g.  a GOMOR rebuttal, dated 19 March 2000;

	h.  a Washington Post newspaper article outlining the effects of a GOMOR on an officer's career;

	i.  copies of the referred OER, dated 31 January 2000, and excerpts from Army Regulation 623-105 (Officer Evaluation Reporting System);

	j.  documents and electronic mail (email) between him and Army officials pertaining to the Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation (Commanders Inquiry) and the allegations and findings of the investigation;

	k.  Selective Retention Board notification of nonselection, dated 14 January 2002;

	l.  Selective Retention Board notification of selection, dated 4 April 2003;

	m.  copies of an Article 15, dated 4 December 2000; a memorandum, dated 10 April 2000, authored by his commanding officer pertaining to the event that led to the Article 15; a sworn statement, dated 17 April 2000; a notification of consideration for promotion by a Department of the Army Mandatory Selection Board, dated 12 March 2003; and "Yahoo News" pertaining to a high-ranking official and the use of obscenities;

	n.  a sworn statement and a copy of his OER for the period 1 April 2000 through 31 March 2001;

	o.  TAG Policy Letter 02-8 (Field Grade Officer Position-Vacancy Promotion Policy), dated 19 June 2002;

	p.  a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) and documents that were considered during the investigation;

	q.  excerpts from U.S. Code, Title 10 and Title 32;

	r.  a copies of the New Jersey Army National Guard (NJARNG) Retention Handbook 1 and 2;

	s.  a sworn statement given by a retired lieutenant colonel, dated 23 June 2004, pertaining to the investigation of another individual and excerpts from Army Regulation 600-8-22;

	t.  the findings and recommendations of an investigation pertaining to an 
M-1 Tank accident of another individual; 

	u.  a document from a website entitled, "Center for the Study of Sexual Minorities in the Military";

	v.  TAG Policy Letter 04-1 (Policy Against Sexual Harassment and Hostile Work Environment), dated 15 February 2004;

	w.  three memoranda for record endorsing his character and performance, dated 27 August 2003; and

	x.  several email messages between him and other Army officials.

CONSIDERATION OF EVIDENCE:

1.  On 17 July 1984, the applicant accepted an appointment in the NJARNG in the rank of second lieutenant and he was promoted through the ranks to major effective 24 January 1998.

2.  On 17 December 1999, the applicant was counseled by his commanding officer after receiving information regarding the applicant and a female sergeant. 
According to the information contained in the general counseling form, the applicant visited the sergeant in or around building 20 (female noncommissioned officers billets) and then departed the premises with her in his privately-owned vehicle.  The sergeant "was not noticed as present until early the next morning."  The applicant was ordered to cease and desist all contact with the sergeant and he was told that his behavior gave the appearance of an improper relationship between an officer and an enlisted Soldier within the command.  He was told that he was in violation of Army Regulation 600-20 and the commanding officer's policy on fraternization, dated 1 October 1999.  He was informed of the effects of his actions and he was told that he was being removed from his command until an Army Regulation 15-6 investigation was completed.  The applicant was assigned duties in support of the 50th Brigade Strength Maintenance Programs.

3.  As a result of a substantiated Army Regulation 15-6 investigation, the applicant was furnished a GOMOR, dated 18 March 2000, for engaging in an improper superior-subordinate relationship in violation of Department of the Army policy, Army Regulation 600-20, and Article 134 (Fraternization), UCMJ.  According to the information contained in the GOMOR, he drove to the "Sea Girt Armory" in his privately-owned vehicle in civilian clothes to meet with a female junior noncommissioned officer and upon arrival at the building in which she was staying, he made an unannounced entry into the female billets looking for the female sergeant.  The applicant was told that his actions startled two female noncommissioned officers as they were in a state of undress and that he had been subsequently advised by his commander to keep his relationship with the same female noncommissioned officer strictly professional in nature, which he failed to do.  He was also reprimanded for attempting to cover up his misconduct by soliciting the assistance of a noncommissioned officer; for violating the privacy of female noncommissioned officers by an unauthorized, unannounced entry into their billets; and for lack of judgment.

4.  The applicant submitted a rebuttal to the GOMOR (date unclear) offering his version of the incidents that resulted in his receiving the GOMOR and requesting that, if the GOMOR was necessary, it be placed in his record for a time limit of 1 year as a probationary measure with the stipulation that if he performed in a superior manner in his new assignment, the appropriate authority consider its removal.  The GOMOR was filed in his OMPF.

5.  On 27 March 2000, the applicant was ordered to active duty as a member of the AGR Program effective 1 April 2000.

6.  On 4 December 2000, the applicant was furnished an Article 15 for behaving with disrespect and for using profane and disrespectful language toward his superior commissioned officer.  His punishment consisted of a forfeiture of pay in the amount of $2,300.00 per month for 2 months.  The applicant elected not to demand trial by court-martial and not submit an appeal to the Article 15.  The commanding general directed that the Article 15 be filed in the performance portion of his OPMF.

7.  Via memorandum, dated 22 October 2001, the applicant was furnished an annual OER for the period 1 February 1999 through 31 January 2000, during which time he performed duties as an Operations and Training Officer, Retention, that was referred to him due to the derogatory information contained therein.  The OER reflected that he lacked integrity, high personal moral standards, and honesty in word and deed.  In Part V – Performance and Potential Evaluation (Rater) he was rated as "Other" and his rater stated that he was relieved for cause during the rated period due to an unprofessional relationship he developed with a female noncommissioned officer within the command.  His senior rater stated that during the rated period he displayed extremely poor judgment and violated the Army Value of integrity by deliberately attempting to cover up his unprofessional relationship and when given an opportunity to tell the truth, he failed to do so.

8.  In Part VII (Senior Rater) of the referred OER, the applicant was rated as fully qualified for promotion potential to the next higher grade; however, he was rated below center of mass due to his relief-for-cause circumstances.  His senior rater stated that his performance forced questions about his honesty and personal integrity and demonstrated those traits that are not desirable in any commissioned officer.  The senior rater stated that the applicant had the potential to continue to contribute at the battalion and brigade staff level.  The applicant was instructed to acknowledge receipt of the referred OER and to submit any desired comments in accordance with the suspense date of 21 November 2001.  He was also advised of the appropriate steps to take to submit comments to the adverse OER.  According to the applicant, he received his referred OER by certified mail on 7 November 2001.

9.  On 14 January 2002, the applicant was notified that he was considered for retention in the Army National Guard (ARNG) and that he had not been selected. 
He was informed that he would be separated from the ARNG and that he would become a member of the Army Reserve by operation of law by 15 March 2002.  However, he was later notified that he had been selected for retention in the AGR Program.

10.  In a memorandum, dated 17 January 2002, the applicant's commanding officer was notified by the Director, Personnel and Community Services, that the applicant had not submitted comments to his referred OER and requested that the applicant be advised to provide comments for his OER no later than 10 February 2002.  If he failed to do so, the OER would be submitted to the National Guard Bureau.  A review of the available records does not show that he submitted comments to the referred OER.

11.  On 11 March 2002, the applicant was ordered to active duty as a member of the AGR Program effective 1 April 2002.

12.  The applicant submitted a request for reinvestigation of the alleged violation of DA policy, Army Regulation 600-20, Article 134 and a lawful order based on new evidence.  On 2 June 2003, a new investigation was completed and the findings and recommendations remained the same as the initial investigation.

13.  On 17 August 2004, the applicant petitioned this Board requesting removal of the GOMOR, the referred OER, and the Article 15 from his OMPF.  He also requested consideration for promotion to lieutenant colonel.  During the processing of his application, an advisory opinion was obtained from the National Guard Bureau (NGB), which stated it received a request for an OER appeal for the same period as a second priority on 13 July 2004.  NGB stated the appeal was forwarded to the Officer Special Review Board (OSRB) for consideration on 9 August 2004 and that on 22 December 2004 the OSRB stated the evidence did not justify deleting the evaluation report from the applicant's OMPF.  The OSRB recommended that the reason for submission for the referred OER be changed from annual to relief for cause.  NGB stated they agreed with the OSRB's recommendation and further recommended that the GOMOR be transferred from the performance portion to the restricted portion of his OMPF based on email traffic between the Military Personnel Office Deputy G-1 and the general officer who issued the GOMOR.  NGB recommended that the applicant submit a request to the Chief, NGB, in accordance with Army Regulation 27-10 (Military Justice), chapter 3, paragraph 3-43, for removal of the Article 15 from his OMPF and that his promotion packet be forwarded to the next regular promotion board scheduled for the September-October 2005 time frame.  NGB stated that in accordance with the applicable regulation, removal of documents does not constitute a basis for review by a Special Selection Board.

14.  He was notified by the staff of the Board on 10 June 2005 that he failed to exhaust his administrative remedies with the DASEB.

15.  On 27 February 2006, the DASEB voted to approve the transfer of the Article 15, dated 24 December 2000, from the performance portion of his OMPF to the restricted portion and to remove the GOMOR, dated 18 March 2000, from his OMPF.  The applicant was informed that the transfer and removal of these documents were based upon intent served and was not considered retroactive and, therefore, the action did not constitute grounds for referral to a Special Selection Board.  Accordingly, the Article 15 was moved to the restricted portion of his OMPF and the GOMOR was removed.

16.  On 31 March 2006, the applicant petitioned this Board requesting removal of the referred OER and the Article 15 from his OMPF.  On 3 January 2007, he was notified by the staff of the Board that he had an open civil suit pending against the NJARNG and, therefore, the Board could not act on his request.

17.  The applicant was notified on 2 February 2007 that he had been selected for promotion to lieutenant colonel by a Reserve Component Promotion Selection Board effective on 2 February 2007 with a date of rank of 29 January 2005.

18.  The applicant's records show that he retired in the rank of lieutenant colonel on 30 September 2009 under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 6-13c(1), due to obtaining sufficient service for retirement.  He had completed approximately 22 years, 3 months, and 29 days of total active service.

19.  The applicant submits a sworn statement from an AGR colonel, dated 25 June 2004, who corroborates his contention that he was told by the commanding general that the Article 15 would not be included in his personnel file at either the State or Federal level.

20.  Army Regulation 623-105 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.

21.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.  Paragraph 3-16d(4) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.

22.  Army Regulation 27-10 provides, in pertinent part, that nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ.  Such misconduct may result from intentional disregard of or failure to comply with prescribed standards of military conduct.  Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty in adjusting to disciplined military life, and similar deficiencies.  These measures are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment.  Included among nonpunitive measures are administrative reprimands and admonitions.

23.  Army Regulation 27-10 states, in pertinent part, that the decision to file DA Forms 2627 on the performance or restricted fiche of the OMPF would be determined by the imposing commander at the time punishment was imposed.  The filing decision of the imposing commander is subject to review by any superior authority.  However, the superior authority cannot direct that an Article 15 be filed in the performance section that the imposing commander directed to be filed in the restricted section.  The imposing commander's filing decision will be indicated in item 5 of the DA Form 2627.  A change in the filing decision should be recorded in item 9 of the DA Form 2627.  When a commander or any superior authority makes a decision regarding the filing, the commander should consider the following:

	a.  The performance section is that portion of the OMPF that is routinely used by career managers and selection boards for the purpose of assignment, promotion, and schooling selection.

	b.  The restricted section is that portion of the OMPF that contains information not normally viewed by career managers or selection boards except as provided in Army Regulation 600-8-104 (Military Personnel Information Management/
Records) or specified in the Secretary of the Army's written instructions to the selection board.

24.  Army Regulation 600-20, paragraph 2-15 requires written approval of the first general officer in a chain of command in order to relive a commander for cause.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be promoted to the rank of colonel or that his promotion to the rank of lieutenant colonel should be back-dated to the year 2003, or sometime near the year that he was originally eligible, and that he should be awarded all back pay and allowances as a result of this correction.  He further contends that any record of an Article 15 that was illegally submitted and administered should be removed from his OMPF along with his OER dated 31 January 2000.

2.  His contentions have been noted.  However, his records show that he was furnished an Article 15 for behaving with disrespect and for using profane and disrespectful language toward his superior commissioned officer.  The evidence of record shows that he committed the offenses and he has failed to submit evidence to the contrary.  Although the commanding general may have stated that he would not direct that the Article 15 be filed in his State or Federal file, he must have subsequently decided otherwise.  The Article 15 clearly reflects that the commanding general directed its filing in the performance portion of the applicant's OMPF.

3.  The DASEB subsequently voted to transfer the Article 15 from the performance portion to the restricted portion of his OMPF based on intent served, not as a result of determining that it was illegally administered.  The Article 15 was transferred as directed by the DASEB and there is no basis for removing it from the restricted portion of his OMPF.

4.  The applicant's contention regarding removal of his referred OER has also been considered.  However, since he was not a commander, he was properly relieved and the OER was properly referred.  
5.  Because of the findings concerning the Article 15 and the referred OER, there is no basis for promoting the applicant to the rank of colonel or back-dating his promotion to lieutenant colonel to an earlier date.  There is no evidence in the available record nor has he submitted any evidence that shows that he was retaliated against as a result of witnessing "sexual harassment" between a command sergeant major and a sergeant and that the retaliation resulted in his failure to be selected for promotion to lieutenant colonel.

6.  The evidence indicates that the information contained in his record at the time of his promotion considerations was accurate.  Once the intended purpose had been served, the GOMOR was removed from his OMPF and the Article 15 was transferred to the restricted portion of his OMPF.  He was considered and selected for promotion to lieutenant colonel by the next regular promotion board with an effective date of 2 February 2007.  He has provided insufficient evidence to show that the derogatory information that was filed in his record was filed in error and the fact that all of his friends have since been promoted to colonel is not a basis for promoting him to colonel or changing his effective date of promotion to lieutenant colonel.

7.  Since there is no basis for promoting the applicant to colonel or adjustment of his date of promotion to lieutenant colonel, he is not entitled to back pay and allowances.

8.  The applicant's contention that the GOMOR remains in his record even after the DASEB directed its removal is erroneous.  As previously stated, the GOMOR was removed from this OMPF as directed by the DASEB and a review of his records fails to reveal otherwise.

9.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090004783



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ABCMR Record of Proceedings (cont)                                         AR20090004783



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