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		BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090013989 


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 reconsideration of his previous request for:

* Removal of an Officer Evaluation Report (OER) for the period 1 July through 18 November 2005 from his Official Military Personnel File (OMPF)
* Reinstatement on active duty
* Promotion reconsideration to major by a special selection board (SSB)
* Placement with his peers

2.  He also requests that he be provided back pay and all entitlements.

3.  The applicant states he is appealing the validity of the OER during his tenure as the Headquarters and Headquarters Company (HHC) Commander from June 2004 through November 2005:

* Mr. S___ served as the Civilian Executive Assistant
* Mr. K_____ served as the U.S. Army (USA) Garrison, Deputy Commander
* Ms. B_____-D________ served as the Area l Public Affairs Officer
* In Aug 2006, the USA Garrison ceased to exist and the higher echelon of command was the Area l Support Activity
* USA Garrison, Camp Red Cloud, Korea and the USA Garrison, Camp Casey, Korea were subordinate to Area l Support Activity
* The Area l was a brigade command equivalent and the Garrisons were battalion command equivalent
* On 30 June 2005, Colonel C____ relinquished command to Colonel N____.  Camp Red Cloud commander was Lieutenant Colonel (LTC) H____, and he was the HHC commander
* He was suspended from his command by LTC H____ on 20 August 2005 pending a Commander's Inquiry (Army Regulation (AR) 15-6 Investigation)
* During his suspension he was placed in the Area 1 S-4 shop with Mr. W____
* It is not his intent to argue the validity or intent of the AR 15-6 Investigation
* He is arguing the actions of his immediate and higher command during his period of suspension
* AR 623-105 (OER System), paragraph 3-50, subparagraphs g and h are associated with Relief for Cause OERs
* He received a referred "Do Not Promote" OER
* AR 623-105, paragraph 3-50 states that a Do Not Promote recommendation is consistent with a Relief for Cause action
* Since he was pending a permanent change of station (PCS), his senior rater decided against a Relief for Cause action
* His senior rater did not serve in his capacity for a minimum of 60 calendar days as required by regulation
* According to AR 623-105, paragraph 3-50 the minimum time requirements for rating officials do not apply
* AR 623-105 does not distinguish between a Relief for Cause OER and a Do Not Promote OER; therefore, the day he was suspended from his duties, his rating time stopped
* His rating chain was broken and he could no longer be rated by his senior rater
* The period after his relief on 20 August 2005 is considered as non-rated time
* AR 623-105 states when possible, the rating chain for officers suspended from duty should remain intact with the officer performing alternate duties under that rating chain
* The former Deputy Garrison Commander states LTC H____ was not in charge of nor did he oversee Department of Logistics (DOL) operations with Mr. W____
* The former Deputy Garrison Commander  had no knowledge of a command relationship between the Area 1 S-4 operation and the Garrison Commander
* The Area 1 staff was rated by the civilian executive assistant, Mr. S___, who was the civilian version of the Deputy Commander
* His senior rater should have been the civilian executive assistant while he was working in the Area 1 DOL.

4.  The applicant provides:

* A summary of his appeal, referencing scenarios that allegedly would or would not have occurred and what he believes to be the answer to each of his scenarios
* Electronic Mail (email) between him and several Army officials
* An undated "comment" from the Executive Assistant (Base Operations)
* A Memorandum for Record, dated 28 August 2009
* A Memorandum for Record, dated 1 September 2009

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080006090, on 14 August 2008.

2.  The applicant makes new arguments that require reconsideration of his case.

3.  The applicant was a member of the United States Army Reserve (USAR) serving in the rank of second lieutenant when he was ordered to active duty effective 24 September 1997.  He was promoted to captain effective 31 March 2001. 

4.  On 20 November 2005, the applicant was notified by his commander that he was being temporarily suspended from his command duties pending the completion of an AR 15-6 Investigation into the allegations of:

* driving his government vehicle to his living quarters and back to work
* driving a privately owned vehicle (POV) while the owner was on temporary duty (TDY)
* providing a false statement to the battalion commander when asked about the use of his government vehicle

5.  The applicant was furnished a PCS OER for the period 1 July 2005 through 18 November 2005.  On the evaluation, "Unsatisfactory Performance/Do Not Promote" was marked by his rater.  His rater stated that the AR 15-6 Investigation established that he did:

* utilize a government vehicle for personal use
* without proper authority, drove an unauthorized POV
* knowingly made a false statement to his battalion commander when he was questioned about the use of the government vehicle

6.  His rater stated that while the applicant is competent as an Army officer, he had demonstrated extremely poor judgment and a disturbing lack of candor and integrity when dealing with his superior.  The rater did not recommend the applicant for promotion to major or selective continuation of service.

7.  "Do Not Promote" was also marked on the evaluation by the applicant's senior rater.  He stated that the applicant is an intelligent and fit officer; however, he lacks the judgment and integrity required and expected of an officer in today's Army.  The rater stated the applicant violated Army regulations and knowingly made false statements to his battalion commander.  The senior rater did not recommend the applicant for promotion or selective continuation of service and stated the applicant's potential for future service was very limited.

8.  The applicant submitted a rebuttal to the OER stating:

* he believed the rating was incorrect and did not provide an accurate and fair assessment of his performance and potential for future service
* he had never denied the allegations lodged against him
* the AR 15-6 Investigation only confirmed what was already known
* he always accepted responsibility for driving the vehicle and when advised not to drive, he stopped
* he was asked to "take care" of the vehicle by the owner who was TDY
* he did not realize he needed a special driver's license
* he sought to receive the battalion commander's permission before driving
* he made a terrible error in judgment which led to him responding to the commander's question with an untrue statement
* his answer to the commander's question was not the result of a flaw in character or his commitment to serve his country

9.  The OER was referred to the applicant on 18 January 2006 and he submitted an appeal to the Department of the Army Officer Special Review Board (OSRB) on 30 October 2007.  His appeal was based on the validity of the OER and his contentions were the same as reflected in these proceedings.  The OSRB denied his appeal on 28 November 2007.

10.  The applicant was discharged on 1 April 2008, due to non-selection for a permanent promotion.  He was appointed in the USAR and was assigned to a unit.

11.  The ABCMR denied his initial appeal on 14 August 2008.

12.  The Memoranda for Record the applicant submits, dated 28 August and 1 September 2009, reiterate the contentions made in his current application and his application to the OSRB.  The emails he submits explain the relationship between Area l, Camp Red Cloud Garrison, and the Camp Casey Garrison in 2005 and the applicant's duties and location in 2005.

13.  AR 623-105, in effect at the time, establishes the policies and procedures for the OER system.  It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports.  It provides that an OER accepted by Headquarters, Department of the Army (HQDA), and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

14.  The regulation defines a referred report, among other things, as any report with ratings or comments that, in the opinion of the senior rater, are so derogatory that the report may have an adverse impact on the rated officer’s career.  It specifies that such a report will be referred to the rated officer by the senior rater for acknowledgment and comment before it is sent to HQDA.

15.  The regulation also provides for requesting a Commander’s Inquiry in cases when a report may be illegal, unjust, or otherwise in violation of the regulation.  Commanders are required to look into the matter and may then conduct an official inquiry into the matters.  The regulation provides that “The primary purpose of the commander’s inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustice after the OER is accepted at HQDA.”  It also provides that “The results of the commander’s inquiry that are forwarded to HQDA will include findings, conclusions and recommendations in a format that could be filed with the OER in the officer’s OMPF for clarification purposes.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration and his supporting documents have been considered.  However, he has not proven that the referred OER is invalid. 

2.  He is not entitled to removal of the OER from his OMPF, reinstatement on active duty, promotion reconsideration to major by an SSB, or placement back with his peers as he requests.

3.  While he continues to be repetitive in his interpretation of AR 623-105, with respect to the validity of his OER, the evidence of records shows that the integrity of his rating chain was not broken.

4.  The applicant was furnished a referred OER, not a Relief for Cause OER.  It was not mandatory that his commander provide him with a Relief for Cause OER as he seems to believe, based on his contentions.  As he was previously informed, he was under investigation and he was temporarily removed from his duties pending the outcome of the investigation.  

5.  All evidence reveals that while he was performing other duties he had not been relieved for cause and his rating chain remained unchanged.  His rater frequently met with officials where he was temporarily assigned.  His rater clearly met the minimum time requirements (60 days) to rate him. 

6.  As he was previously informed, he has not shown that the contested report contains any serious administrative deficiencies or that it was not prepared in accordance with applicable regulations.  He did not contest the OER at the time and he did not request a Commander's Inquiry, as he was within his rights to do so if he believed his OER was invalid or illegal. 

7.  With respect to the applicant's scenarios, they are mere speculation at best.  He has not proven error or injustice in the actions taken by the Army.  His disagreement with the actions taken by his rater is not a basis for removing the contested OER.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080006090, dated 14 August 2008.



      __________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)                                         AR20090013989



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ABCMR Record of Proceedings (cont)                                         AR20090013989



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