IN THE CASE OF:	  

		BOARD DATE:	  22 October 2009

		DOCKET NUMBER:  AR20090005978 


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) covering the period 19 April 2004 thru 12 August 2004 from his Official Military Personnel File (OMPF).  He also requests promotion reconsideration for the rank of major through a Special Selection Board (SSB).  As an alternative, he requests that the General Officer Memorandum of Reprimand (GOMOR) and his rebuttal be removed from attachment to the OER.

2.  The applicant states, in a nine-page supplemental statement, that the OER should be removed from his OMPF due to both administrative and substantive errors and that he should be reconsidered for promotion to the rank of major by an SSB.  He goes on to state that he was not afforded an opportunity to respond to the referred OER, the reviewer failed to comply with paragraphs 2-18(c) and  3-58(c) of Army Regulation (AR) 623-3, the OER was based on unproven derogatory information and finally, because the GOMOR was transferred to the restricted portion of his OMPF.  The filing of the GOMOR with the contested OER is unjust.  He continues by stating that the GOMOR was not transferred to the restricted portion of his OMPF until after the promotion board had convened and as a result he was non-selected (twice) for promotion to the rank of major.  He continues by stating that the contested OER was not reviewed by the first Army officer senior to the individual directing relief.  He states that he never received a complete copy of the investigation conducted in accordance with AR 15-6 that was used in the GOMOR and the OER, that he was not afforded the opportunity to comment on the OER, and no attempt was made to provide him any of the statements used against him or to ascertain if they were unproven derogatory information.
3.  The applicant provides a nine-page explanation of his application; a copy of the contested OER; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a copy of a memorandum, dated 3 July 2007, notifying him of his first non-selection for promotion to the rank of major; a copy of his GOMOR and his rebuttal; a copy of the Executive Summary of the AR 15-6 investigation with attachments; a copy of a letter of rebuttal from his U.S. Army Reserve (USAR) commanding general (CG); and a copy of the results of his OER appeal to the Officer Special Review Board (OSRB).

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.  The applicant was commissioned as a USAR Quartermaster Corps second lieutenant on 10 December 1994.  He continued to serve in troop program units and on 10 February 2003, he was ordered to active duty in support of Operations Enduring/Iraqi Freedom.  He deployed with his unit as a commander of a quartermaster petroleum company to Iraq and Kuwait on 8 May 2003.  He was subsequently awarded the Combat Action Badge for combat actions on 9 October 2003.

3.  On 28 April 2004, the CG of III Corps issued the applicant a GOMOR for failure to maintain established standards of conduct.  The CG indicated that an AR 15-6 investigation documented that the applicant had permitted Soldiers in his units to consume alcohol and possess pornography in violation of General Order Number 1.  The applicant permitted living conditions that were slovenly and reflected an absence of military order.  He allowed unauthorized substitution of vehicle parts (cannibalization), and he permitted Soldiers to use other units’ equipment without authority.  The applicant also intentionally avoided missions by making equipment non-serviceable.  He was advised that he had 7 days from the day he received the GOMOR in which to submit matters in his own behalf.  There is no indication in the available records to show when the applicant actually received the GOMOR.
4.  On 28 April 2004, the CG also authored a memorandum to the commander, 13th Corps Support Command (COSCOM) indicating that he had reviewed the commander's request to relieve the applicant from command and he approved the commander's request.

5.  On 15 June 2004, the commander of the U.S. Army Central Command (CENTCOM) authored a memorandum (information paper) to the Deputy CG of the Coalition Forces Land Component Command (CFLCC) regarding the transfer of the GOMOR and relief for cause actions from the Commander, III Corps to CFLCC.  The memorandum explained that the adverse actions arose from an 
AR 15-6 investigation ordered by the 171st Area Support Group (ASG) commander.  A major completed the investigation and returned it to the 171st ASG and the 300th ASG replaced the 171st ASG before action could be taken.  The 171st Judge Advocate General (JAG) transferred the action to the Staff Judge Advocate (SJA) who staffed it with the commander of the 300th ASG.  The commander approved various findings and recommendations and recommended that the commander and the first sergeant (1SG) both be relieved for cause.  The last paragraph indicates that when the AR 15-6 investigation was received, the GOMOR and relief actions could be served on the applicant and the 1SG.

6.  On 24 July 2004, the Commander, CFLCC again dispatched a memorandum to the Deputy CG of CFLCC which indicates, in effect, that the AR 15-6 investigation, GOMOR, and relief actions were never properly served on the applicant and the 1SG, nor were they given an opportunity to respond.  He recommended that the AR 15-6 investigation dated 21 February 2004, which serves as the basis for the actions, be properly served and filed in their OMPFs.

7.  On 27 July 2004, the Commander, CFLCC dispatched a memorandum to the applicant informing the applicant that the CG of III Corps had signed the GOMOR and memorandum relieving him of command.  He also indicated that in June 2004, the battalion commander suspended him from command pending resolution of the decision to relieve him for cause.  He advised the applicant that he intended to effectuate the decisions to reprimand and relieve him for cause and to make a determination regarding the filing of the GOMOR.  The applicant was advised that he could submit matters in his own behalf within 10 days, prior to the decision being made.  He included the GOMOR, a copy of the memorandum authorizing relief for cause, a copy of the executive summary of the AR 15-6 investigation, and an acknowledgement letter.

8.  On 31 July 2004, the applicant's unit returned to Fort Drum, New York for demobilization.  However, the applicant and the 1SG remained in theater pending completion of the ongoing actions against them.

9.  A review of the 1SG's records show that, on 4 August 2004, the 1SG submitted a rebuttal to his GOMOR and relief for cause actions and indicated that the AR 15-6 investigation was incomplete and flawed.  He further indicated that he had been pulled off the flight to the United States within hours of his unit departing and it was only then that he saw the AR 15-6 investigation, which he contended did not present a clear picture of the command climate.  He requested that he be restored to his position as the unit 1SG and the GOMOR be rescinded.  The rebuttal was seven pages in length. 

10.  On 10 August 2004, the applicant submitted a five-page rebuttal to the GOMOR in which he indicated that he had been provided a grossly incomplete copy of the AR 15-6 investigation and asserted, in effect, that it was unfair to expect him to rebut the allegations against him without being provided the evidence against him in the form of a complete investigation.  He went on to dispute the allegations that he could and requested that the GOMOR be rescinded.  He also noted that the GOMOR was first presented to him the day before his unit flew back to the United States and that he was unable to participate with a unit that he had commanded for over 17 months, of which 14 months were served in a war zone.  He asserted that this was punishment enough.

11.  On 13 August 2004, the Deputy CG, CFLCC directed that the applicant be relieved for cause and redeployed to the United States for demobilization.

12.  On 13 August 2004, the applicant received a relief for cause OER covering the period 19 April to 12 August 2004.  Both the rater and the senior rater indicated that the applicant had received a GOMOR and was relieved from his duties by the Deputy CG, CFLCC and both recommended that he not be promoted.  The report was referred to the applicant for comment.

13.  The applicant departed the theater on 31 September 2004 and was honorably released from active duty at Fort Drum, New York on 14 October 2004.  He had served 1 year, 8 months, and 3 days of active service during the period of mobilization.

14.  On 14 August 2007, the applicant applied to the Department of the Army Suitability Evaluation Board (DASEB) requesting to have the GOMOR removed from his OMPF or transferred to the restricted potion of his OMPF.  He asserted at that time that the information contained in the GOMOR was factually incorrect and that he was not given an opportunity to review the AR 15-6 investigation to prepare his rebuttal.  He went on to state that he was only given an incomplete copy of the investigation and contended that the accusations in the Executive Summary were not true and were not based upon the evidence.  He also asserted that not all relevant witnesses were interviewed.  The DASEB was unable to obtain a complete copy of the AR 15-6 investigation.  The DASEB opined that it could not determine the validity of the GOMOR but believed that there was some doubt that he received complete due process.  Accordingly, the DASEB directed that the GOMOR be transferred to the restricted portion of his OMPF based on intent served. 

15.  The applicant also applied to the Officer Special Review Board (OSRB) in 2008 to have the OER removed from his OMPF; however, the OSRB determined that his request did not contain sufficient justification to warrant an exception to the 3-year period for submitting a substantive appeal.

16.  A review of the applicant's OMPF shows that the contested OER is filed with a copy of the GOMOR and the applicant's rebuttal to the GOMOR.  It also contains a copy of the CG's decision to relieve him for cause.

17.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, provides that if relief for cause is contemplated on the basis of an informal AR 15-6 investigation, the referral procedures contained in that regulation must be complied with before the act of initiating or directing relief.  This is irrespective of the fact that the resultant relief for cause report must also be referred to the rated officer.  If the relief is directed by someone not in the designated rating chain, the official directing the relief will describe the reasons for relief in an enclosure to the report.  Paragraph 3-35 of that regulation provides, in pertinent part, that no enclosures, other than a supplementary reviewer's statement, orders substantiating rating official's authority to evaluate, senior rater's letter of referral and rated officer's acknowledgment and comments regarding a referred report, statement from person who directed relief if other than rating official, commander's statement, statement from reviewer of relief report, and any other statements or documents directed by Headquarters, Department of the Army (HQDA), which will be referred to the rated officer for comment prior to filing, will be attached to the original DA Form 67-9 (OER) when forwarded to HQDA.  

18.  Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officer) provides, in pertinent part, that when adverse administrative action is contemplated against an individual based on information obtained as a result of an investigation conducted under AR 15-6, the individual must be notified in writing of the proposed adverse action and provided a copy, if not previously provided, of the part of the findings and recommendations of the investigation and the supporting evidence on which the proposed adverse action is based and the individual will be given a reasonable opportunity to reply in writing and submit relevant rebuttal material before the adverse action is taken.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the OER ending on 12 August 2004 is unjust and that he was denied due process has been noted and found to have some merit.  

2.  While there is insufficient evidence to ascertain if the information contained in the contested OER is unjust, there is sufficient evidence to suggest that his basic right to due process was not afforded to him by virtue of him not being afforded a copy of the AR 15-6 investigation that served as the basis for his relief.  Although he was provided a partial copy, in the form of an Executive Summary, that in itself was insufficient for the applicant to submit a sufficient rebuttal or to disprove the allegations against him.

3.  It is also noted that the investigation was dated 21 February 2004 and the applicant did not receive his partial copy of the investigation until on or about August 2004, just prior to his unit departing the theater, which essentially denied him the opportunity to obtain supporting statements from members of his unit or dispute information contained in the investigation.

4.  Additionally, the GOMOR, which was subsequently removed from the performance portion of his OMPF, is improperly filed with the contested OER in accordance with the applicable regulations.

5.  Therefore, given the fact that his fundamental due process rights were not adhered to and the fact that the GOMOR was improperly filed with the contested OER, it would be in the interest of justice to remove the contested OER and all supporting documents from his OMPF and that the period covered by the contested OER be deemed non-rated time.

6.  Additionally, the applicant is also entitled to receive promotion reconsideration for promotion to the rank of major by all boards that considered his records with the contested OER and did not select him for promotion.

7.  In the event that he is selected by any of those boards, he entitled to all back pay and allowances from the date he would have been selected.








BOARD VOTE:

____x____  ___x_____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the OER ending 12 August 2004 and all attached documents from his OMPF, by deeming the time non-rated, and by placing him before a Special Selection Board for all boards that previously considered him for promotion and did not select him, and if selected, entitlement to all back pay and allowances from the date he would have originally been promoted.



      _______ _   _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)                                         AR20090005978



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ABCMR Record of Proceedings (cont)                                         AR20090005978



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