IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20090018754 


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 from his Official Military Personnel File (OMPF) of a general officer memorandum of reprimand (GOMOR), an Officer Evaluation Report (OER) ending in February 2005 and all related documents,  reinstatement of his security clearance, that he be granted completion of the non-resident Army War College, that the Board exercise its authority under Department of Defense Directive (DODD) 7050.6 and comply with the directives assigned to it under paragraph 5.3.4 and other portions of that directive in regard to the Department of the Army Inspector General (DAIG) investigation.

2.  The applicant states, in a 35-page attachment, in effect, that the GOMOR should be removed from his OMPF because it was not filed until about 12 months after it was issued and that the command’s manipulation of dates was an apparent attempt to present an illusion of timely compliance with due process.  He also states that the GOMOR was based on an unfounded allegation and was submitted in reprisal for his making a protected communication.  He goes on to state that the OER and all supporting documents should be removed because it was not prepared in a timely manner, because a proper commander’s inquiry was not conducted, and because it contains unverified derogatory information.  Accordingly, it should be removed in its entirety with no letter of explanation placed in his OMPF.  He further states that his security clearance was unjustly suspended and that final action to resolve that action should be taken by the Board because he was denied due process in that matter.  He also states that because of the flagging action initiated by the command, and the failure of the command to resolve the matter in a timely manner, he was denied the opportunity to complete the final phase of his War College studies.  Accordingly, he should granted completion of the Non-Resident War College.  He continues by stating that the DAIG investigation was not properly conducted and contends that the Board should exercise its authority under Department of Defense Directive (DODD) 7050.6 and comply with the directives assigned to it under paragraph 5.3.4 and other portions of that directive in regards to the DAIG investigation.

3.  The applicant provides a 35-page attachment (attachment A) explaining his application along with 45 attachments listed in an Attachment B to his application.

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.  On 30 May 2005, the commanding general (CG) of the 352d Civil Affairs Command authored an eight-page memorandum of record surrounding the events involving the applicant.

3.  On 3 June 2005, while serving in the rank of colonel as the Chief, Central Command (CENTCOM) Plans, Programs and Policy Team of a Reserve Civil Affairs Command in Maryland, the applicant received a three-page GOMOR in which the CG reprimanded him for disobeying his orders, directives and instructions to cease his unprofessional advances and behavior towards a lieutenant who was serving as the CG’s aide de camp.  The applicant was advised that he had 10 days in which to submit matters in his own behalf before the CG made a filing decision on the GOMOR.  The applicant’s rebuttal to the GOMOR is dated 2 August 2005, well after the 10 days he was afforded to respond.  The CG’s filing decision is also dated 2 August 2005 and indicates that he reviewed the applicant’s response and decided to file the GOMOR in his OMPF.

4.  A suspension of favorable personnel actions (FLAG) was initiated against the applicant on 3 June 2005.

5.  On 3 June 2005, the applicant also received an annual OER covering the period 6 February 2004 to 5 February 2005.  The rater (a colonel) gave the applicant an “Unsatisfactory Performance – Do not Promote” rating and indicated that in addition to the applicant’s attempt to fraternize with a junior officer and commit adultery, his actions created a hostile work environment and disrupted the good order and discipline within the headquarters.  His rater further stated that he should not be considered for promotion or command (enclosure 3).  

6.  The applicant’s senior rater (SR), a brigadier general and also the CG, gave the applicant a “Do Not Promote” rating, placed him below center of mass – Do not retain in his SR profile, and indicated that the applicant’s character faults involving sexual harassment, immoral behavior, and refusal to accept responsibility for his actions make him unsuitable for positions of authority.  The report was referred to the applicant and he submitted his comments on 5 July 2005.  The SR responded to the applicant’s comments to the effect that his comments did not warrant any change to the OER.  There is no evidence in the available records to show that the applicant appealed the OER to the Officer Special Review Board (OSRB) while he was in an active status. 

7.  Meanwhile, on 10 June 2005, the CG submitted a request to the CG, U.S. Army Civil Affairs and Psychological Operations Command at Fort Bragg, North Carolina requesting that the applicant’s security clearance be suspended because his current behavior and misconduct warranted immediate suspension of his clearance.  On 17 June 2005, the Central Clearance Facility (CCF) suspended the applicant’s access to classified information.

8.  On 4 November 2005, the applicant filed an allegation of reprisal against the CG with the Department of Defense Inspector General (DODIG).  On 1 February 2007, the DAIG dispatched a letter to the applicant informing him that an investigation was conducted and that none of his allegations against the CG were substantiated.

9.  On 5 April 2006, in response to a congressional inquiry, the commander of the CCF at Fort Meade, Maryland informed the congressional representative that the applicant’s access to classified information was suspended on 17 June 2005 and that his case would be held in abeyance until the ongoing investigations were completed.  Once the investigations were completed and all relevant information was forwarded to the CCF, his case would be adjudicated in accordance with all applicable regulations.

10.  On 9 May 2006, in response to a congressional inquiry, officials at the Civil Affairs and Psychological Operations Command at Fort Bragg informed the congressional representative that the applicant’s access to classified information had been suspended for misconduct and that the command was initiating action to eliminate the applicant from further service.  The officials also advised that until the action was completed he would not be allowed access to classified information.  There is no evidence in the available records of any action to separate the applicant from the service or to refer him to a show-cause board.

11.  On 23 August 2007, the applicant was transferred to the Retired Reserve.

12.  The applicant explains that he was enrolled in the Army War College Distance Education Program which is a 2-year program comprised of two resident and two non-resident phases and further contends that he had only to complete one resident phase in order to complete the course.  He also states that his command prevented him from completing the course by virtue of the fact that the command did not act expeditiously and he remained flagged through the period of the course.  However, he has not provided and his OMPF contains no evidence to document his enrollment or the extent of his completion of the course.  Additionally, there is no evidence of any action taken on the part of the applicant to attend the final phase of the course.

13.  A review of the available evidence fails to provide any completed copies of any investigations conducted or discussed in the applicant’s case. 

14. Army Regulation 600-37 serves as the authority for the filing of unfavorable information in the OMPF.  It states, in pertinent part, that a non-punitive MOR or admonition will be filed in the OMPF only when directed by a general officer or the officer having general court-martial jurisdiction over the recipient.

15.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraphs 3-57 and 6-6 provide than 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.

16.  Army Regulation 600-8-2 prescribes the policies, operating tasks, and steps governing the suspension of favorable personnel actions (FLAG).  It provides, in pertinent part, that suspension of favorable personnel actions is mandatory when an investigation (formal or informal) is initiated on a Soldier by military or civilian authorities.  A suspension of favorable personnel actions will be initiated immediately when a Soldier’s status changes from favorable to unfavorable.  A flag properly imposed in accordance with the regulation prohibits the attendance at civil or military schooling. 

17.  DOD Directive Number 7050.6, dated 20 November 1989, covered the Military Whistleblower Protection provisions (Title 10, U.S. Code, section 1034).  This directive was reissued on 3 September 1992.  The directive indicates that it is DOD policy that no person shall restrict a member of the Armed Forces from lawfully communicating with a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; that members of the Armed Forces shall be free from reprisal for making or preparing to make lawful communications to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; and that no employee or member of the Armed Forces may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing a lawful communication to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization.  (Note:  This directive was reissued again on 12 August 1995 to include specific other complaints as protected communications and expand the scope of persons and activities to whom a protected communication could be made.)

18.  Army Regulation 20-1 provides, in pertinent part, that anyone (military, DA civilian, family member, or private citizen) has the right to register complaints orally or in writing with an Army IG concerning matters of DA interest.  In exercising this right, the complainant will be free from restraint, coercion, discrimination, harassment, or reprimand.  Soldiers will be encouraged to discuss their problems or grievances first with their commanding officers, as provided by Army Regulation 600-20.  However, persons desiring to submit a complaint directly to an IG at any level, but who do not wish to discuss the matter with their commanding officer or other members of the chain of command, will be permitted to do so.  Any type of disciplinary or other adverse action taken against an individual for registering a complaint, except when fraudulently made, is prohibited.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the GOMOR is invalid and unjust because it does not specify the specific nature of his misconduct and because it was not filed in his OMPF until a year after it was issued is determined to be without merit.  

2.  The administrative reprimand appears to be very clear and concise as to why it was issued and while the applicant may want to argue that it is not specific enough, there appears to be little or no doubt that the applicant knew why he was receiving it.  It also appears that the imposing officer gave him every opportunity to avoid such action and the applicant chose to ignore his commander’s advice. 

3.  Accordingly, it appears that the GOMOR was properly issued and filed in the applicant’s OMPF in accordance with the applicable regulations with no indication of any violations of the applicant’s rights and he has failed to show through the evidence submitted with his application and the evidence of record, sufficient evidence to warrant removal of the GOMOR from his records.

4.  The applicant’s contention that the contested OER should be removed because it was issued in reprisal for his making a protected communication and because it was based on unfounded and unproven derogatory information has also been noted and found to lack merit.

5.  Given the available evidence in this case, there appears to be sufficient evidence to establish that the comments and ratings contained on the contested report were appropriate and that they reflected the opinions/assessments made by the rating chain at the time.  The applicant has failed to provide sufficient evidence to establish that the OER was issued in reprisal for his protected communication.  In fact, it appears that the OER was rendered before he made his communication.  In any event, the circumstances in this case indicate that the outcome would have been the same whether he made a protected communication or not. 

6.  Accordingly, it appears that the OER properly reflects the considered opinion of the rating chain and he has failed to show through the evidence submitted with his application and the evidence of record, sufficient basis to void the OER.

7.  While the applicant has not provided copies of the investigations conducted in his case, or the complete investigation conducted by the DAIG, there is sufficient evidence to show that the investigation conducted by the DAIG did not substantiate his allegations.  Accordingly, it would be inappropriate for this Board to attempt to second guess the investigation conducted by the DAIG or to make a determination that the investigation was flawed and/or inaccurate based on the limited evidence and opinion of the applicant.  Therefore, in the absence of evidence to the contrary, the results of the DAIG investigation are accepted.

8.  The applicant’s contention that the Board should grant him credit for completion of the War College because his command denied him the opportunity to complete the course has been noted and found to lack merit.  While the applicant has not provided any evidence to substantiate his status in the course in question, it would be inappropriate to grant him credit for a course that he did not complete, especially given that the actions that prevented him from attending the course were the result of his own misconduct and poor judgment.  It is also noted that the chain of command noted in his OER that he should not be retained.  Therefore, it is not reasonable that the command would pay for him to attend a course when they believed that he no longer had anything to contribute to the Army.

9.  The bottom line in this case is that the CG gave the applicant every opportunity to avoid any of the actions that occurred by cleaning up his act.  However, he chose not to do so and when things did not go as he planned, he determined that he would follow his own agenda and attempted to place the blame for his own shortcomings on others.  It appears based on the available evidence that rather than trying to overcome his own shortcomings he attempted to create a distraction from himself and focus the command's attention on his fellow officers.  However, the issue was never with the other officers of the command, it was his conduct that was under scrutiny, especially given the players involved (members of the CG’s staff).  In any event, the applicant was a senior officer who was not displaying mature and rational judgment at the time and, as result, lost the faith and confidence of the very commanders who tried to save him from himself.

10.  While the applicant may not be satisfied with how the events played out in the end, there do not appear to be any violations of the applicable regulations by the chain of command in any of the actions taken against the applicant or any actions that were nor within the purview of the command taken at the time. 

11.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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)                                         AR20090018754





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ABCMR Record of Proceedings (cont)                                         AR20090018754



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