IN THE CASE OF:	  

		BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20090020836


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 Officer Evaluation Report (OER) for the period 29 June 2002 through 23 January 2003, hereafter referred to as the subject OER, be removed from his Official Military Personnel File (OMPF) and the period identified as non-rated time.  Given approval of this request, the applicant further requests promotion reconsideration to major under the criteria for the 2006 promotion board, followed by adjustment of his date of rank to major.

2.  The applicant states:

   a.  A commander's inquiry was never conducted during the 2003-2005 time frame.  Had such an inquiry been conducted, the evidence would have refuted his chain of command's premise that he requested relief from command, and would have shown the true state of the unit's readiness.

	b.  He never volunteered to be relieved from command.  He was offended by his commander's use of profanity toward him and said, "I cannot work for you if you continue to disrespect me with profanity."  He never said, "I will not work for you."

	c.  He appealed the subject OER to the Officer Special Review Board (OSRB) and provided the results of a show cause board.  The OSRB dismissed the findings of the show cause board and denied his appeal.

	d.  On 25 November 2008, he asked for a commander's inquiry into the matter of the subject OER and his relief-for cause.  On 18 November 2009, he received the results of the commander's inquiry.

3.  The applicant provides:

* A copy of a memorandum from the Commander, U.S. Army Reserve Command (USARC), Fort McPherson, GA, for the applicant, dated
29 October 2009, Subject:  Commander's Inquiry, with related documents
* the subject OER with supplemental review and supporting documents (all identified as "attachment 4")
* a copy of a DA Form 1575 (Report of Proceedings by Investigating Officer/ Board of Officers) for his 23 July 2004 show cause board (all identified as "attachment 5")
* a copy of the OSRB's OER Appeal Case Summary opened on 20 September 2007 and completed on 3 January 2008
* copies of OERs received between 20 June 2006 and 21 May 2009
* a copy of a memorandum from the applicant, for the Commander, 88th Regional Readiness Command (RRC), Granite City, IL, dated 16 December 2003, Subject:  Unresolved Issues and Relief for Cause [of applicant]
* a copy of an email message from the Commander, 88th RRC to the applicant
* a copy of a memorandum from the applicant to the Commander, USARC, dated 22 September 2003, Subject:  Request Change of Duty Station, Assistance with Pay and Date of Rank
* a copy of an Officer Record Brief (ORB), dated 14 January 2010
* a copy of a interactive Personnel Electronic Records Management System (iPERMS) list of documents

CONSIDERATION OF EVIDENCE:

1.  The applicant is a U.S. Army Reserve (USAR) major with a date of rank and effective date of promotion of 3 June 2010.

2.  During the period 29 June 2002 through 23 January 2003, he was a captain in the Army Guard Reserve (AGR) program, serving as company commander of the 739th Engineer Company, 687th Quartermaster Battalion, 303rd Ordnance Group, 88th Regional Support Command (RSC) [now known as the 88th RRC], Granite City.

3.  On 23 January 2003, he was relieved of his command and a relief-for-cause OER was initiated which covered 4 months of rated time.  His rater was a lieutenant colonel (LTC), battalion commander, and his senior rater was a colonel (COL), group commander.  The OER shows the following entries:

	a.  in Part IVa(2) (Performance Evaluation - Professionalism-Army Values), the rater placed an "X" in the "No" blocks for "Loyalty" and "Duty"; 

	b.  in Part IVb(3) (Performance Evaluation - Professionalism-Actions), the rater placed an "X" in the “No” blocks for "Decision Making" and "Executing";

	c.  in Part Va (Performance and Potential Evaluation), the rater placed an "X" in the "Unsatisfactory Performance - Do Not Promote" block and in Part Vb (Comments), he entered the following comments:

	"On 23 January 2003, [Applicant] demonstrated his lack of professional and moral obligation to duty.  He requested, from 303rd Group Commander, COL J---- D. D- L- C---, Jr., that he be relieved of the duties and responsibilities as Commander, 739th Engineer Company.  He also requested relief from deployment with the unit.  This conduct violates a.7 of the Core Army Values detailed in Part IV of this report.  [Applicant] did not focus on the tasks necessary to prepare his company for deployment when it was alerted and mobilized.  [Applicant's] request to be relieved of command displays a lack of loyalty to his entire chain of command, which violates a.4 of the Core Army Values in Part IV of this report.  [Applicant] displayed poor judgement [sic] and an inability to make decisions.  [Applicant] also demonstrated a lack of interpersonal and managerial skills in coordinating the actions of his officers and NCO's at the time of mobilization.  Such conduct is unacceptable from an officer.  [Applicant] does not possess the potential to serve effectively in the United States Army and should immediately be removed from the AGR program."

	d.  In Part VIIa (Senior Rater), the senior rater placed an "X" in the "No" block, indicating that a completed DA Form 67-9-1 (Officer Evaluation Support Form) was not received with this report and considered in his evaluation and review, and he further placed an "X" in the "Do Not Promote" block and entered the following comments:

"[Applicant] volunteered to be relieved of his command and was unable to carry out command duties.  I directed the Relief for Cause of [Applicant] with the approval of the 88th Regional Support Command Commanding General.  [Applicant] could not initiate the required actions to mobilize the 739th Engineer Company.  [Applicant] lacks the leadership qualities necessary to lead Soldiers into a combat situation.  


[Applicant] should not be considered for retention in the Active Guard/ Reserve Program.  A DA Form 67-9-1 was not received with this report due to the circumstances necessitating the relief for cause."

4.  The subject OER was stamped with the date "Aug 18, 2003" next to the rater's signature and "Aug 20, 2003" next to the senior rater's signature.  The applicant signed the form with the stamped date of "Aug 20, 2003."  He also indicated that he was attaching comments to the referred report.  The subject OER was subsequently processed by the U.S. Army Human Resources Command (USAHRC), Alexandria, VA.

5.  There is no evidence he requested a commander's inquiry into the circumstances of his relief for cause.  On 16 December 2003, he wrote a memorandum for the Commander, 88th RSC.  In the memorandum, he stated "I informed my commanders that I could not serve for them."  He further complained about his relief for cause and about a lack of resolution to issues raised during his assumption of command inventory/inspection during the December 2002 - January 2003 time period.  He also requested reassignment from Granite City to Baltimore, MD.

6.  On 31 July 2004, a board of officers was convened to require him to show cause as to why he should be retained in the Army.  As relates to the issues raised in the subject OER, the board found there was insufficient evidence to show he:

* displayed poor judgment and an inability to make decisions
* demonstrated a lack of interpersonal and managerial skills in coordinating the actions of his officers and NCOs during mobilization
* requested relief from his command
* failed to prepare his command for deployment

The board recommended he be retained in the Army and reassigned to a different unit.

7.  On 8 August 2005, he forwarded an OER appeal to the Commander, USAHRC under the provisions of Army Regulation 623-105 (Officer Evaluation Reporting System).  He appealed the subject OER on the basis of administrative and substantive error, specifically:

* the relief from his command position was not accomplished in accordance with Army Regulation 623-105, paragraph 3-50b, in that no General Officer (GO) approval was obtained


* there was no formal/informal investigation conducted
* the subject OER was never processed by USAHRC prior to being inserted in his OMPF
* the subject OER contained false and inaccurate statements

8.  In his OER appeal, he also referenced an unspecified investigation directed by the Commander, 88th RRC after he "documented…blatant disregard to Army regulations, maltreatment of Soldiers, racial inequalities, and lack of care for Soldiers" in the 739th Engineer Company based upon his 3-month assessment of the unit.  The applicant states, incredibly, he was identified as a "suspect" even though all incidents occurred prior to his assumption of command.  Also, a Report of Survey (ROS) was completed, presumably for missing property, which found two previous commanders, two previous supply sergeants, and a unit administrator accountable.

9.  The OSRB completed his appeal on 3 January 2008, which was denied.  The board reviewed his contentions and all supporting documentation.  The rater and senior rater for the subject OER were contacted and both stated he told them he could not work for them and "requested he be relieved from his duties as commander."  The senior rater stated he contacted the Commanding General (CG), 88th RRC and received GO approval to relieve him based on his personal request to be relieved.  The board specifically found:

* there was GO approval of the applicant's relief for cause

* the CG, 88th RRC signed a memorandum on 26 June 2005
* GO approval is not mandated by regulation at the time the OER is prepared
* the OER was rejected by USAHRC multiple times for administrative errors and for lack of review of the relief

* Army Regulation 623-105 does not mandate an investigation, formal or informal, before accomplishing a relief for cause
* the subject OER was finally accepted by USAHRC on 27 June 2005
* the facts and circumstances presented in the OER were accurate

* the applicant admitted telling his chain of command he could not work for them
* no evidence was found to support the applicant's claim of substantive inaccuracy


* the show cause board's findings were either irrelevant or incorrect

* the board found no evidence the applicant requested to be relieved; however, the OSRB found conclusive evidence of such a request
* the sole responsibility of a show cause board is to make recommendation for or against retention; it does not adjudicate OER appeals

10.  The OSRB also addressed ancillary issues involving lack of counseling, personal bias against him, and continued retaliation against him.  These issues were determined to be without merit.

11.  On 25 November 2008, the applicant forwarded a memorandum to the CG, USARC, requesting a commander's inquiry of the circumstances of the subject OER.  In his request, he stated his original request for a commander's inquiry was not honored.  He justified his current request after some 5 years because he was a 2-time non-select for promotion to major and he was facing removal.  He stated:

* he never asked to be relieved, but instead said, "Sir, I cannot work for you if you continue to disrespect me with profanity"
* a show cause board found no proof to substantiate the negative entries made in the subject OER and recommended his retention
* he appealed his OER to the OSRB and, incredibly, that board rejected his appeal
* he has served in Afghanistan, Korea, Germany, Panama, Honduras, and Costa Rica
* he successfully commanded an engineer detachment in the U.S. Virgin Islands National Guard as a second lieutenant
* the command wherein he was relieved is a priority force support package (FSP) unit with broken readiness standards as a result of years of neglect by past leadership and has been designated a Commanding General's Unit of Interest

12.  In a memorandum to the applicant dated 29 October 2009, the CG, USARC advised he had completed his commander's inquiry.  The inquiry found:

* between 2003-2005, the applicant sought assistance from multiple commands without success
* the subject OER was signed by the senior rater and him on 20 August 2003 and referred to him


* there was no written GO concurrence for relief until 26 June 2005
* the show cause board did not believe the rater and senior rater evaluation of him and, therefore, recommended he be retained

The CG's final determination was that, without GO approval of the relief request, the actions taken by his chain of command were considered "for all intents and purposes as a temporary suspension from assigned duties, rather than a final relief from command for cause."  The CG recommended submitting an appeal to the Army Review Boards Agency, OSRB.

13.  Army Regulation 623-105 prescribes the officer evaluation function of the military personnel system.  Paragraph 3-57 provides 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, 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.  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.  Army Regulation 623-105, chapter 6, contains the policies and procedures pertaining to managing the OER redress program.  Paragraph 6-10 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 clearly and convincingly establishes that the presumption of regularity referred to in paragraph 6-6 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.  A report is required when an officer is relieved for cause regardless of the rating period involved.  Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty.  In this regard, duty performance consists of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional 


officer standards shown in Part IV, DA Form 67-9 (Officer Evaluation Report).  These standards apply to conduct both on and off duty.  If, for whatever reasons, the relief does not occur on the date the officer is removed from his or her duty position responsibilities, the period of time between the removal and the relief will be nonrated time included in the period of the relief report.  The report will be rendered by the published rating chain at the time of the relief; no other report will be due during this nonrated period.  When an officer is suspended from duties pending investigation every effort should be made to retain the established rating chain until the investigation is resolved.  The following specific instructions apply to completing a relief report:

* the potential evaluation in Part Va, DA Form 67-9, must reflect "Do not promote" or "Other"
* the report will identify the rating official who directed the relief.  This official will clearly explain the reason for relief, in his or her narrative portion of the DA Form 67-9

16.  Army Regulation 600-20 (Army Command Policy) prescribes the policies and responsibilities of command, which include military discipline and conduct, and the Army Equal Opportunity Program. It provides that when a senior commander loses confidence in a subordinate commander's ability to command due to misconduct, poor judgment, the subordinate's inability to complete assigned duties, or for other similar reasons, the senior commander has the authority to relieve the subordinate commander.  Relief is preceded with formal counseling by the commander or supervisor unless such action is not deemed appropriate or practical under the circumstances.  Although any commander may temporarily suspend a subordinate from command, final action to relieve an officer from any command position will not be taken until after written approval by the first general officer (to include one frocked to the grade of brigadier general) in the chain of command of the officer being relieved is obtained.  Any action purporting to finally relieve an officer from any command position prior to the required written approval will be considered for all purposes as a temporary suspension from assigned duties rather than a final relief from command for cause.  If a general officer (to include one frocked to the grade of brigadier general) is the relieving official, no further approval of the relief action is required; however, Army Regulation 623-105 concerning administrative review of relief reports remain applicable.

17.  The Army Review Boards Agency serves as the highest administrative level for review of personnel actions taken by lower levels of the Army and administers a number of boards, including the Army Special Review Boards which comprises 


the OSRB, Enlisted Special Review Board (ESRB), and the Department of the Army Suitability Evaluation Board (DASEB).

DISCUSSION AND CONCLUSIONS:

1.  The applicant was the commander of the 739th Engineer Company, 687th Quartermaster Battalion, 303rd Ordnance Group; he was rated by his battalion commander, and senior rated by his group commander.  He served as company commander for 6 months and 26 days.

2.  It is unclear as to what transpired during his tenure as company commander.  At some point he was charged with preparing his unit for mobilization and deployment.  Unknown issues surfaced between him and his superiors.  He clearly states he informed his superiors that he "could not serve for them."  Both of his superiors state he asked to be relieved of his duties as company commander.  He denies this.

3.  He was relieved of his duties as company commander by his senior rater.  The senior rater stated he relieved him with the approval of the CG, 88th RSC and that he did so because the applicant could not do his job and lacked the necessary leadership qualities.  Apparently, the senior rater only received oral approval for relief in February 2003, when regulations required written approval.  This was an administrative error, but it did not change the basic facts of the matter and does not rise to the level of a fatal flaw.

4.  The subject OER was rejected by USAHRC on several occasions for administrative error, including the error cited above.  Ultimately, those errors were corrected and the report was accepted by USAHRC for inclusion in the applicant's OMPF.

5.  He underwent a show cause board which found insufficient evidence to support the negative comments contained in the subject OER and recommended he be retained.  That board did not say the negative statements were false and no further information concerning those findings is available to this Board.  Without such information, the weight of evidence supports the determination of the rater, the senior rater, and the first GO in the chain of command, all of whom contend the applicant did not perform to standard and lacked leadership and sound judgment.

6.  He next sought relief through the OSRB, the highest administrative level for the adjudication of OER appeals.  The OSRB reviewed all documentation submitted by him and contacted his rater and senior rater.  After a thorough review, the OSRB denied his OER appeal.
7.  At this point, he reverted to a lower level administrative review when he sought a commander's inquiry by the CG, USARC.  This request was tardy by some 5 years and involved a commander who was not in command at the time.  The commander's inquiry essentially found procedural error in how his relief was handled, but made no determination as to the correctness of the actual rating rendered in the subject OER.  The CG, USARC recommended he pursue his appeal through the OSRB.

8.  The applicant, from all evidence presented, had a contentious relationship with his superiors.  He told his superiors he could not serve them and they obliged him by relieving him of command.  He then sought other assistance unsuccessfully and ultimately appealed his OER to the OSRB.  The OSRB thoroughly reviewed the appeal and denied it based on sound reasoning.  His appeal to the CG, USARC was out of order as a HQDA-level review board had already denied his appeal.

9.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090020836



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ABCMR Record of Proceedings (cont)                                         AR20090020836



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