IN THE CASE OF:	  

		BOARD DATE:	  1 December 2009

		DOCKET NUMBER:  AR20090005831 


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, removal of an adverse Officer Evaluation Report (OER) from his Official Military Personnel File (OMPF).   

2.  The applicant states, in effect, he was never provided the OER in question and the Army Regulation (AR) 15-6 investigation that claimed misconduct was faulty.  He claims that a subsequent ethics investigation disagreed with the findings of the AR 15-6 investigation.  He further indicates he was not provided the final findings until August 2008.  He also indicates that the Army Special Review Board (ASRB) refused to consider his case and claimed it was late 
(10 August 2009).  He states that this adverse OER has caused him to not be promoted twice and the rater refused to provide him the OER.  He claims the evidence suggests multiple violations of regulations in writing the OER.  He further states that the final memorandum exonerating him was provided in August 2008, and extraordinary circumstances existed in his case.  

3.  The applicant provides a memorandum of law and exhibits A through 
A-7 identified therein in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  On 11 September 1996, the applicant was appointed a first lieutenant in the Judge Advocate General’s (JAG) Corps of the United States Army Reserve (USAR).  On 16 April 2001, he was promoted to captain (CPT).  


2.  On 10 June 2002, the applicant was ordered to active duty for a period of 
365 days for the purpose of mobilization for Noble Eagle.  Active duty orders were published on 26 May 2004, which authorized his continued active duty service through 4 December 2004 and active duty orders were published on 
29 November 2004, which authorized his continued active duty through 
6 December 2006.  

3.  On 25 March 2005, a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) was published with the results of an AR 15-6 investigation completed on the applicant based on an allegation that he committed adultery.  The investigating officer (IO) concluded that there was overwhelming information which support the allegation of an adulterous relationship between the applicant and 1LT S________.  The IO indicated that the evidence showed and supported that on 4 December 2004, the applicant and 1LT S_______ departed Newark International Airport en route to Puerto Rico.  Both parties stayed together at Air Station Borinquen in Puerto Rico and the desk manager confirmed the presence of both parties.  Evidentiary information supporting the assertion include continuous electronic mail (e-mail) messages between the applicant and 1LT S________ soliciting lunch and dinner dates, constant observations by Fort Dix checkpoint personnel of both parties entering and exiting the installation together in the same vehicle and even warning and caution being expressed to 1LT S_______ about the inappropriateness and appearance of their relationship.  In succinct terms, this relationship had become very apparent to the Fort Dix community.  

4.  The AR 15-6 IO concluded in regard to the misconduct allegation against the applicant that there was clearly substantive evidence to support the misconduct (adultery) charge against the applicant.  He finally recommended the applicant and 1LT S________ receive General Officer Letters of Reprimand (GOLORs), that the applicant be relieved of all duties that involved disciplining Soldiers, such as military prosecutor, separation board recorder, and command advisor, and that both the applicant and 1LT S________ be removed from active duty and returned to their Reserve units.  

5.  On 3 May 2005, a change of rater OER covering the period 1 September 2004 through 13 April 2005 was completed on the applicant.  The report evaluated him as a Trial Counsel at Fort Dix, New Jersey.  Part II (Authentication) shows the report was signed by the rater and senior rater on 
1 and 2 May 2005, respectively.  It also shows the report was a referred report and that on 3 May 2005 it was indicated that the applicant was unavailable for signature.  


6.  In Part IV (performance evaluation-professionalism) of the OER in question, the rater, the Chief, Criminal Law, a lieutenant colonel, gave "No" responses to character questions a1 (honor) and a2 (integrity).  In the leader attributes/skills/ actions section, the rater gave "No" responses to questions b2 (skills) conceptual and b3 (actions) decision making.  

7.  In Part V (performance and potential) the rater placed the applicant in the two block (satisfactory performance-promote) and his comments regarding the applicant's performance of duty were favorable.  The rater did comment that during the rating period the applicant had a lapse in moral judgment and that an investigation determined he had engaged in misconduct.  He further indicated the applicant's conduct reflected poorly upon his moral character, his honor, his integrity, and his ability to maintain a professional relationship with a commander. The rater concluded by commenting that the applicant had the potential to serve in more challenging assignments with minimal supervision, should be enrolled in Intermediate Level Education (ILE), and should be promoted with his contemporaries. 

8.  In Part VII (senior rater) the senior rater, the Staff Judge Advocate (SJA), a colonel, placed the applicant in the two block (fully qualified) in Part VIIa (promotion potential).  The senior rater concurred with the comments of the rater and provided very favorable remarks regarding the applicant's performance of duty.  He concluded by indicating the applicant should be enrolled in ILE, be promoted to major, and be assigned to positions with increased responsibility.  

9.  The record contains a memorandum from the Fort Dix SJA (the senior rater), dated 1 August 2005, which forwarded the contested OER to the applicant as a referred report. The SJA also prepared a memorandum indicating that two attempts had been made to mail the referred OER to the applicant and both attempts resulted in the certified letters being returned from the Post Office unclaimed.  It also indicates the applicant was contacted by telephone and confirmed the address the referral letters were mailed to was correct.  

10.  On 28 April 2006, an IO, appointed by the Fort Dix SJA to conduct a preliminary screening inquiry under the provisions of AR 27-1 into allegations of professional misconduct on the part of the applicant, published the results of his inquiry.  The IO found that whether or not the applicant actually committed adultery, the AR 15-6 investigation into his actions found that he allowed himself to be perceived universally at Fort Dix as participating in an obviously inappropriate relationship.  He further indicated that the evidence showed the applicant completed an official Army form with incorrect information, and conveyed information within this relationship which although it did not violate any professional confidentiality responsibility, was clearly inappropriate.  

11.  The IO further stated that even though his relationship with 1LT S________ did not create a conflict of interest with his representation of the Army, did not prejudice the administration of justice and even though he did not breach any client confidentialities, the applicant failed in his duty to the Army and the legal profession by allowing his actions to create the impression with the Fort Dix community that he was violating them and that he could not be trusted.  

12.  The AR 27-1 IO stated that military lawyers, as officers and administrators of justice, must conduct themselves beyond reproach.  Lack of trust in the judicial process quickly leads to lack of trust in leadership which in turn quickly leads to the erosion of good order and discipline.  The applicant's actions threatened this delicate balance.  He finally recommended the applicant receive a strong reprimand regarding his conduct so he understands the seriousness of his actions and how they have compromised the trust of not only a single member of the legal profession, but the entire JAG Corps itself.  He stated the applicant participated in an inappropriate relationship which gave the impression to the entire Fort Dix community that he was committing misconduct and caused the entire installation to question his integrity and truthfulness.  He indicated the applicant was made aware of this well in advance of any investigation and did nothing to correct this perception.  

13.  In connection with the processing of this case, an advisory opinion was obtained from the President, ASRB.  This ASRB official indicated that the ASRB recommends the applicant's request be denied.  She indicates that in his appeal, the applicant argued that the OER in question was never provided or made available to him by his former command; however, a review of his record shows the applicant's command made two attempts to mail the OER to the applicant after the applicant was contacted telephonically.  As a result, he had notice the OER had been referred to him.  She further stated that in his application the applicant indicates that a subsequent ethics investigation disagreed with the AR 15-6 investigation findings, which formed the basis for the OER.  A review of the ethics review memorandum provided by the applicant shows that even though there were four findings that he did not engage in professional misconduct, which was contrary to the original investigation, the Deputy, JAG (DJAG did in fact find that applicant had engaged in professional misconduct by knowingly making a false statement on or about 25 March 2005.  The DJAG recommended the applicant receive a reprimand from his current SJA, which supports the rater's comment on the contested report that "his conduct reflected poorly upon his moral character, his honor, his integrity, and his ability to maintain a professional relationship with a commander."   


14.  On 13 September 2009, the applicant responded to the ASRB advisory opinion.  He indicated that the ASRB did not consider or understand his arguments supporting extraordinary circumstances.  Nor did it consider his extreme family situation or the nature of his tolling argument.  The three year rule must not apply in this case because the rater refused to provide the OER and it was not filed in his official file until 6 months after the OER through date.  The applicant argues that the ABCMR should consider his case in spite of the statute of limitations in the interest of justice.  

15.  The applicant also argues that the ASRB should have considered his case because he provided sufficient evidence of the existence of extraordinary circumstances that warranted the ASRB waiving the three year submission policy.  He further indicates that the alleged misconduct investigated and referenced in the OER did not include a finding that he submitted a false statement to the investigator.  He further states that the AR 15-6 IO specifically found that he did not provide a false statement, when he responded to the question regarding his stay, nor did he find he engaged in adultery.  The IO stated only that there was supporting factual information which supported such an allegation.  The IO listed circumstantial evidence, much of which was erroneous.  Furthermore, the IO failed to even consider why he travelled to Puerto Rico and discounted the 1LT's statement that they were just good friends and that he was working on the family home most of the time.  Significantly, and contrary to the language in the OER, the IO made no findings or conclusions that he engaged in actual misconduct or that he made a moral lapse.  Had the IO believed he engaged in misconduct, he was bound to state so explicitly.  He claims much of the factual investigations were found to be untrue in the subsequent ethics investigation.  

16.  The applicant further indicates that the ethics investigation went beyond the scope of the prior investigation in both detail and inquiry of issues presented.  Had the rater intended to state that the applicant lied to the IO, she had an obligation pursuant to Army regulations to do so explicitly.  He claims that equity demands he be provided the benefit of the doubt regarding the rater's reference to alleged misconduct.  There is no way to conclusively determine what the rater meant when she included that reference in the OER.  He respectively submits that it was more likely she was referring to allegations that were subsequently disproven by the ethics investigation.  Moreover, the rater most likely and improperly considered the legal reviewer's inaccurate factual representations, which further bolster the impression that he misrepresented the facts.  An opinion that the rater's misconduct reference only related to whether he stayed with the commander is highly speculative and unsupported by facts.  


17.  The applicant further indicates that he did not provide a false statement and in the case before the Board, the issue is that the ASRB President relies upon to deny his entire application, is his response to the question "Did you stay with LT S________?"  According to the ASRB President, the rater must have been referring only to this precise exchange when the rater included the blanket adverse narrative in the OER.  His opinion is not credible and highly speculative given all the issues presented.  Moreover, it completely ignores the context in which it was made.  

18.  The applicant claims he answered the question and all other questions presented in good faith.  For a statement to be false, the question presented must be clear and not subject to interpretation.  This notion was set forth by the ethics investigator, when he found that there was no follow up on questions regarding the specific arrangements, not specifically if he meant the same room or in the same house or even if he meant during the entire duration of the applicant's stay in Puerto Rico or just part of it.  For the reasons he outlines in his rebuttal and in his original application, the applicant requests the Board not adopt the ASRB's advisory opinion and that his petition be granted.  He further requests that his latest Meritorious Service Medal (MSM), his closeout OER while deployed to Iraq, his DD Form 214, and the letter of endorsement he submits from his current SJA be considered by the Board.  

19.  AR 26-27 (Rules of Professional Conduct for Lawyers) provides comprehensive rules governing the ethical conduct of Army lawyers, military and civilian.  Appendix B provides rules of professional conduct for lawyers, and rule 8-4 contains guidance on the rule for misconduct and defines professional misconduct for lawyers.  

20.  AR 623-3 (Evaluation Reporting System (ERS)) prescribes the policies and procedures for completing evaluation reports that support the ERS.  It also provides guidance regarding redress programs including commander inquiries and appeals.  Chapter 3 contains Army evaluation principles and Section VI contains guidance on restrictions.  Paragraph 3-23 contains guidance regarding unproven derogatory information.  It states, in pertinent part, that any  verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's use of verified derogatory information.  For example, when an interim report with verified information is made available to a commander, the verified information may be included in an OER.  If previously-reported information later proves to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the report in accordance with chapter 6 of the regulation.  
21.  Paragraph 3-39 of AR 623-3 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 and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and 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.  

22.  Paragraph 6-11 of AR 623-3 outlines the burden of proof that must be met to support a successful evaluation report 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 clearly and convincingly establishes that the presumption of regularity referred to in paragraphs 3-39 and 6-7 will 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that the contested OER is unjust and based on a faulty investigation that found misconduct, which was disproved in a subsequent ethics investigation, and that he was never provided the contested OER for review, were carefully considered.  However, there is insufficient evidence to support these claims.  

2.  By regulation, an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Once a report has been accepted for filing in an officer's record, requests to alter, withdraw, or replace the report will not be honored.  

3.  The governing regulation stipulates that in order to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly establishes that the regulatory presumption of regularity for filed reports 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. 

4.  The evidence of record in this case shows the applicant participated in what at a minimum was an inappropriate relationship with a female officer who was not his wife.  Whether or not adultery was proven is not the overriding factor in this case.  The fact the applicant participated in this inappropriate relationship and tried to hide this fact is supported by all the investigations completed on the case. 

5.  The fact that the relationship was not viewed as a violation of the rules of professional conduct for lawyers, as indicated in the ethics investigation, does not alter the fact this relationship was perceived by the chain of command and by members of the Fort Dix community at large as inappropriate.  Although different specific acts of misconduct were cited in the different investigations completed on the applicant, some form of misconduct was found in all three investigations.  As a result, it is concluded the language in the contested report represents the considered opinion and objective judgment of the rater at the time the OER was prepared and was based on proven incidents of inappropriate behavior on the part of the applicant.  

6.  The applicant's assertions that he was never provided the referred OER was also carefully considered.  However, the evidence of record confirms that two attempts were made to mail the referred report to the applicant and that these communications were returned as unclaimed by the post office, after the applicant was contacted telephonically and verified his mailing address.  As a result, it appears the chain of command made honest attempts to refer the report and the lack of receipt by the applicant was the result of his not claiming the correspondence mailed to him.  Therefore, there is an insufficient evidentiary basis to show that rating officials did not follow proper procedures in trying to provide the contested report to the applicant.  As a result, there appears to be no significant error or injustice related to the referral of the report that would support its removal from the record at this time.  

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)                                         AR20090005831



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ABCMR Record of Proceedings (cont)                                         AR20090005831


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