IN THE CASE OF:	

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090020166 


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:

	a.  Reinstatement to active duty.

	b.  Promotion to colonel (COL) or lieutenant colonel (LTC) or at least to the grade he would have achieved based on his year group (1977). 

	c.  An opportunity to attend career developing schools that would normally be accorded the proposed advancement grade.

	d.  Removal of the DA Form 67-8 (U.S. Army Officer Evaluation Report (OER)) covering the rating period from 11 April 1985 through 22 November 1985 (hereafter referred to as the contested OER) from his records.

	e.  Issuance of a letter of redress. 

	f.  Monetary compensation for the estimated value of medical, dental, educational, travel, and recreational benefits he and his family would have received had he continued on active duty.

	g.  A personal hearing.



2.  The applicant states he first submitted his application to this Board in December 1997 but it was not acted upon.  In November 1985, while walking to his car, he encountered a civilian cook working in his company's dining facility.  His car battery was dead; therefore, he asked her to jump-start his car.  He then asked her if she would like to fraternize.  He meant it in a sociable way.  His chain of command immediately interpreted this to mean "let us go to bed." He was never given an opportunity to explain himself and was subsequently relieved from his duties as a company commander for alleged sexual harassment.  He believes the action was based on prejudice and racial stereotype.  The commanding general (CG) and the investigating officer (IO) concluded there were administrative and substantive errors in his relief from command.  They recommended a change to the contested OER and his reinstatement to command, but neither action occurred.  

3.  He was required to sign a statement without due process and he was not notified in writing or provided a copy of the information upon which the adverse action was based.   Additionally, he was not given an opportunity to submit a rebuttal.  Also, the person he allegedly harassed was neither under his supervision nor was she an employee of the U.S. Government.  She was not even interviewed.  Finally, the IO was junior to him in rank and grade.  

4.  The applicant provides in support of his request a copy of the contested OER; an affidavit, dated 16 September 1996 from a Fort Jackson, SC, employee; a copy of the CG's memorandum; a copy of an endorsement, dated 20 December 1985, titled: Request for Commander's Inquiry; and a copy of an affidavit, dated 
21 September 1996.

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 previously submitted his request on 7 April 1997.  A staff member of the Army Review Boards Agency (ARBA) Support Division in St. Louis, MO, acknowledged receipt of his application on 23 December 1997.  However, action was not taken to properly dispose of his request in a timely manner.  It appears the original application was inadvertently returned to him with the letter of acknowledgement.  The Board extends its sincere apology to the applicant for inattention to his original application.

3.  With prior enlisted service in the Regular Army (RA), the applicant was appointed an infantry U.S. Army Reserve second lieutenant and he entered active duty on 19 October 1976.  He subsequently served in various staff and leadership positions, within and outside continental United States, and attained the rank of captain (CPT).  He was assigned to Company E, 5th Battalion, 1st Basic Combat Training Brigade, Fort Jackson, SC.

4.  During the month of November 1985, while serving as a company commander, he received a relief for cause OER, the contested OER, which covered 7 months of rated time from 11 April 1985 through 22 November 1985.  His rater was a LTC, the battalion commander, and his senior rater was a COL, the brigade commander.  The OER is not currently filed in his service records; however, the copy he provided shows the following entries:

	a.  in Part IV (Performance Evaluation-Professionalism), his rater assigned a "5" rating under "Displays sound judgment" and a "5" rating under "Sets and enforces high standards." 

	b.  in Part IVb (Professional Ethics), the supporting comments indicate that he displayed extremely poor judgment by making verbal remarks with sexual overtones to a civilian contract female employee and that his irresponsible behavior and lack of self-discipline created a climate in his company that was prejudicial to good order and discipline within the battalion. 

	c.  In Part V (Performance and Potential Evaluation), the rater marked the "usually exceeds requirements" block and a "do not promote" block under potential.  The rater entered the following comments:

The applicant executed his duties as a company commander in an enthusiastic and highly competitive manner.  He eagerly shared his successes with his fellow company commanders.  The applicant's company compared very favorably with the other companies in the battalion.  The applicant failed as a company commander due to poor judgment and personal misconduct.  On 19 November 1985, an investigation was conducted in accordance with AR (Army Regulation) 15-6 due to incidents of trainees abusing other trainees within his company.  It was discovered that several irregularities had occurred that were in direct conflict with Army policy and local policy that involved both trainees and cadre.  Results of the investigation clearly indicated that the applicant was not in command of his company.  Amidst the situation the applicant displayed poor judgment and personal misconduct by making comments which had a sexual connotation, to a civilian female employee.  On 22 November 1985, the battalion commander directed his relief from command and advised him of the reasons for such actions.

	d.  in Part VII (Senior Rater), his senior rater placed him in the third block from the bottom of his senior rater profile and made the following comments:

The applicant forfeited his right to command when, by displaying poor judgment, he failed to enforce high standards expected of a commissioned officer.  These unprofessional actions were substantiated by two informal AR 15-6 investigations conducted at the direction of the battalion commander.  Do not consider this officer for promotion.  This report is in compliance with AR 623-105 (Officer Evaluation Reporting System).  

5.  The applicant's OER was signed by his rater, senior rater, and the applicant on 3 April 1986.

6.  The applicant's record is void of the AR 15-6 investigation.

7.  Subsequent to his relief, he was reassigned to Headquarters Company,
5th Battalion, 1st Basic Combat Training Brigade as an assistant to the battalion commander in November 1985 and to Company A, Troop Command, as a project officer in May 1986.

8.  On 22 July 1987, by memorandum, the U.S. Army Military Personnel Center, Alexandria, VA, notified him that a board of officers convened on 9 July 1987 and considered him for elimination from the Army.  He was recommended for retention.

9.  On 3 September 1987, he submitted a request for voluntary retirement with a desired retirement date of 1 August 1988.  His request was subsequently approved on 15 September 1987.  

10.  He was honorably retired on 31 July 1988 and was placed on the retired list in his retired rank of CPT on 1 August 1988.  He was credited with over 20 years of active service.

11.  He submitted the following documents:

	a.  A copy of an affidavit, dated 16 September 1996, from a Fort Jackson, SC, employee wherein she states that in 1995, she provided him with copies of his personnel action marked "Personal in Nature."  Some of the documents had original signatures and others were copies and included an undated letter from the CG to the Commander, 1st Basic Training Brigade, and a letter to the applicant.

	b.  A copy of an undated letter, from the CG, Fort Jackson, SC to the Commander, 1st Basic Training Brigade, wherein the CG states that a commander's inquiry was conducted to investigate alleged errors in the relief for cause OER he received and that the report of investigation and findings were attached for the brigade commander's review to take corrective action of the procedural errors or remove the OER and restore the applicant to command.

	c.  An endorsement, dated 20 December 1985, from the CG to the applicant wherein the applicant was notified that a commander's inquiry was conducted concerning the circumstances surrounding his relief from command and the submission of the contested OER.  The CG added that he determined there were procedural and administrative errors in the referral procedure that led to the applicant's relief and in the preparation of his OER and that the report together with the IO's findings had been returned to the brigade commander for correction of errors or removal of the report. 

	d.  A self-authored affidavit, dated 21 September 1996, wherein the applicant restates the events that led to his relief from command and that he believes information was intentionally withheld from him during the investigation process.  He also states that he heard the CG gave instructions to reinstate him to command.

12.  AR 623-105, in effect at the time (14 October 1985), prescribed the officer evaluation function of the military personnel system and provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System and OERS.  It also provided guidance regarding redress programs including commander inquiries and appeals. 

13.  Paragraph 5-32 provides the basic rule applicable to modifications of previously submitted reports.  It states that an evaluation report accepted by Headquarters, Department of the Army (HQDA) and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly designated rating officials, 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.  Exceptions are only authorized when information that was unknown or unverified when the report 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 or verified when the report was prepared.

14.  Chapter 9 contains the policies and procedures pertaining to managing the OER redress program and outlines the burden of proof that must be met to support a successful OER appeal.  It contains guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It states, in effect, that the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should 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. 

15.  AR 623-105 provides for a commander’s inquiry in cases where it is brought to the attention of a commander that an OER rendered by a subordinate or a member of a subordinate command may be illegal, unjust or otherwise in violation of this regulation.  The primary purpose of a 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 of a commander’s inquiry is to obtain command involvement in clarifying errors or injustices after the OER is accepted at HQDA.  The commander involved will inquire into the matters alleged, but must confine his or her inquiry to matters relating to the clarity of the OER, the facts contained in the OER, the compliance of the OER with the governing regulation, and the conduct of the rated officer and members of the rating chain.  The commander does not have authority to direct that an OER evaluation be changed, and the commander may not use command influence to alter the honest evaluation of an officer by a rating official. 

16.  AR 15-185 provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  It states, in pertinent part, that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be reinstated to active duty; promoted to COL or LTC or at least the grade he would have achieved based on his year group; the opportunity to attend career developing schools that would normally be accorded the proposed advancement grade; that the contested OER should be removed from his records; he should be issued a letter of redress; and he should receive monetary compensation for the estimated value of medical, dental, educational, travel, and recreational benefits he and his family would have received had he continued on active duty.

2.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interests of equity and justice in this case.

3.  With respect to the contested OER, the complete facts and circumstances surrounding his relief as well as the two AR 15-6 informal investigations are not available for review with this case.  However, based on the applicant's rater's evaluation, it appears that the primary and overriding reason for his removal and relief was his failure to command his company.  The rater clearly states that one of the two informal investigations revealed incidents of trainees abusing other trainees during his tenure and the occurrence of several irregularities involving trainees and cadre that were in direct conflict with Army policy.  His poor judgment and personal misconduct was thus a secondary reason that further confirmed his failure.

4.  The applicant's record is void of the contested OER and the supporting referral memoranda.  This makes it impossible to determine if proper notification procedures were followed or ignored.  Additionally, notwithstanding the CG's memorandum notifying the applicant that the contested OER contained administrative errors, it is unclear if his chain of command corrected the errors. 

5.  The contested OER provided by the applicant appears to be administratively correct and reflected the rater’s and senior rater’s evaluation of the applicant.  There is no evidence, and the applicant has provided none, to show his rater and senior rater did not comply with the regulatory requirements in the evaluation process.  Therefore, no basis has been established for removing the contested OER.

6.  Subsequent to his relief in 1986, the applicant was reassigned to other positions.  It appears that a recommendation for elimination was initiated against him but a board of officers recommended his retention on active duty.  Despite this recommendation, he submitted a request for voluntary retirement.  

7.  With respect to the applicant’s promotion to LTC and COL and schooling, since there is insufficient evidence to warrant removal of the contested OER there is no basis to grant promotion or schooling. 

8.  With respect to monetary compensation, the ABCMR corrects records.  It does not award monetary compensation.  If as a result of the record correction a member is entitled to certain pay and allowances, a copy of the Board's decision is forwarded to the Defense Finance and Accounting Service for an audit and/or determination of entitlement.  Absent an error or an injustice, there is no record correction or monetary entitlement.

9.  With respect to the applicant's request that the Army provide him a letter of redress, it is unclear what he means.  The Army defines redress as setting something right by making compensation for a wrong.  Since there is no evidence of any error, injustice, or wrongdoing, there is no basis for compensation.

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)                                         AR20090020166



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ABCMR Record of Proceedings (cont)                                         AR20090020166



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