IN THE CASE OF:	  

		BOARD DATE:	    29 July 2010

		DOCKET NUMBER:  AR20100012830 


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 of 24 May 2007 to 18 February 2008 from his official military personnel file (OMPF) and a personal appearance before the Board.

2.  The applicant states the OER in question was based on false claims concerning an incident during which an Iraqi Army squad mistakenly fired upon a U.S. Army patrol in Mosul, Iraq.  He goes on to state that the allegations against him were never proven by any objective investigation, but were based on hearsay and speculation despite his repeated requests to have an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation conducted.  He also states that his raters claimed that he was negligent and reckless because he authorized his Soldiers to return fire upon what was later discovered to be an Iraqi Army position despite the fact that this Iraqi position opened fire on his convoy first and the convoy was being conducted at night with night vision goggles (NVG).  Additionally, the Iraqi Army position was not well-known as alleged and, in fact, was not known by the units operating in the area or his own troop command post.  He further states that before receiving the OER, he produced the witnesses and exhibits included with this appeal and requested that an objective investigation be conducted in accordance with Army Regulation 15-6.  However, his raters denied his request.  Contrary to the squadron commander's assertion, he did not admit accuracy to the facts of the commander's inquiry and he has never received a copy of the anonymous note alleging his misconduct.  However, he was very angry when one of his friends and fellow commanders along with some of his Soldiers were killed by an Iraqi Soldier on 26 December 2008 and the chain of command appeared to be trying to cover up the facts surrounding their deaths.  He explains that he was very vocal with his dissatisfaction and felt very hurt by the loss of his friend and the lack of action being taken by the command at the time.  He subsequently underwent anger management training for his issues.

3.  The applicant provides:

* a 2-page letter explaining his request
* a 9-page letter explaining his request and providing a timeline of events
* a binder containing a table of contents with all of his supporting documents

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as an armor second lieutenant on 27 May 2000 upon graduation from the U.S. Military Academy at West Point, New York.  He was promoted to the rank of first lieutenant on 27 November 2001 and to the rank of captain on 1 October 2003.  The applicant deployed to Iraq from August 2002 to March 2003, from February 2005 to February 2006, and from November 2007 to February 2009.

2.  On 31 January 2008, while the applicant was serving as a troop commander of an armored cavalry squadron during his third tour of duty in Iraq, a commander's inquiry was conducted and 10 sworn statements were taken during the period between 0918 hours and 1335 hours by the investigating officer (a major) which included a statement from the applicant rendered at 1215 hours.

3.  Based on the available evidence, it appears the squadron commander (a lieutenant colonel) summarized the commander's inquiry into a memorandum for record (MFR) with the attached sworn statements.  The MFR is dated 31 January 2008.

4.  The MFR indicates:

* the applicant fired his personal weapons inappropriately and ordered his Soldiers to fire their weapons inappropriately by firing at dogs that posed little or no threat
* the applicant fired at a discarded flak vest and ordered his gunner to fire at a suspected improvised explosive device (IED) which is not an approved tactical technical procedure (TTP) by the armored cavalry regiment
* the applicant put himself and his Soldiers at an unacceptable risk by shooting out of his window while being engaged with small arms fire

5.  The facts listed in the MFR indicate the squadron executive officer (XO) found an anonymous note on his desk on 31 January 2008 alleging that the applicant had killed dogs when there was no military necessity to do so and that he ordered Soldiers to conduct reconnaissance by fire while in the city of Mosul when not in contact with the enemy.

6.  The commander's inquiry determined:

* the applicant had fired on or ordered the firing on of several dogs where the military necessity for killing the animals was lacking
* on or about 26 January 2008, he fired his 9-millimeter pistol at a discarded flak vest at Iraqi Police Station 5W when there was no reason to do so
* on or about the last week in December 2007, the applicant ordered his gunner to fire at a suspected IED on Tampa instead of cordoning the area and calling the explosive ordnance detachment; reducing IED's by direct fire is not an approved TTP
* on or about 28 January 2008 while in a convoy receiving small arms fire, he lowered his ballistic glass window on the door of his vehicle so that he could personally return fire and attempt to suppress enemy fire
* on or about 29 January 2008 while traveling in an area known to be patrolled and secured by friendly forces, authorized his Soldiers to return fire after being reported being fired upon from a nearby building; he authorized this return fire without checking with the on-scene commander; due to this lack of fire control, the applicant's forces engaged an observation post manned by Iraqi Army forces

7.  On 31 January 2008, the regimental commander (a colonel) notified the applicant that he was suspended from his assigned command pending the outcome of allegations that he engaged in actions that caused him (the regimental commander) to lose confidence in his ability to command.

8.  On 6 May 2008, the applicant received a relief-for-cause OER covering the period from 24 May 2007 through 18 February 2008.  The report evaluated him as a troop commander in an armored cavalry squadron responsible for the collective training of 250 Soldiers focused on providing logistical support to the squadron during combat operations.

9.  In Part IVb (Leader Attributes/Skills/Actions), the rater gave the applicant "NO" ratings for Emotional (displays self control, calm under pressure) and Decision Making (employs sound judgment, logical reasoning and uses resources wisely).

10.  In Part V (Performance and Potential), the rater gave the applicant an "OTHER" rating.  The rater indicated that during combat operations the applicant displayed a lack of sound decision making and judgment and demonstrated on several accounts that his actions were driven from emotion and not a reasoned mind.  In several instances he allowed himself to demonstrate conduct that contradicted intent and reinforced less than desirable traits among the Soldiers of the troop.  He is an intelligent officer with incredible drive and capability and if he can harness his emotions and not allow them to impact his decision making, he would be an exceptional officer.  He went on to state that with a successful regimen of professional anger management/coping and subsequent evaluation, he could continue to progress in the Army.

11.  In Part IVc (Comment on Potential for Promotion), the rater commented, "Potentially select the applicant for major after an evaluation period and place in non-command positions in the Army to harness his intellect and language skills."

12.  In Part VII (Senior Rater), the senior rater/regimental commander gave the applicant a "Do Not Promote" rating and indicated that he relieved the applicant for displaying poor judgment in his decision making while conducting combat operations in Mosul, Iraq.  He further stated that the applicant discharged his weapon unnecessarily and recklessly on multiple occasions.  He operated contrary to his regimental commander's intent and demonstrated standards and discipline that were counter to those held by the Army and Regiment of Mounted Riflemen.  He stated the applicant had limited potential for future service.

13.  The report was referred to the applicant for comment and on 18 March 2008, 2 months before the rating officials signed the report, and offered a rebuttal to the report in an effort to explain that his decisions were reasonable given the circumstances.  However, despite his request for an investigation to be conducted under Army Regulation 15-6, the true nature of the circumstances was never actually addressed.

14.  Meanwhile, the applicant was reassigned to duties as the assistant operations officer (plans) in the same regiment and on 31 March 2009, he received essentially a maximum OER covering the period from 19 February 2008 to 18 February 2009.  His rater (a major) indicated the applicant was a truly exceptional officer who should be promoted ahead of his peers.  His senior rater, the regimental executive officer, indicated the applicant was the best of 13 captains on an exceptional regimental staff and must be promoted early to major.  It is noted that the applicant's senior rater during this OER period was rated by the regimental commander who directed the applicant's relief.

15.  Meanwhile, the applicant appealed the contested OER to the Officer Special Review Board (OSRB) on 19 November 2008 contending that the OER was substantially inaccurate and was based on a commander's inquiry that excluded details and facts that had a significant bearing on the events in question.  He submitted 47 statements from various peers and subordinates in support of his request as well as the executive summary of the commander's inquiry.

16.  The OSRB noted that the entire commander's inquiry was not available for review and determined that regularity must be presumed in regards to the commander's inquiry process.  Accordingly, the OSRB determined that the applicant had failed to provide clear and convincing evidence that the contested OER contained a material error, inaccuracy, or injustice and that the rating was not a true assessment of his performance during the rating period.  Accordingly, the OSRB denied his request for removal of the OER on 25 June 2009.

17.  The applicant was subsequently assigned to the Presidio of Monterey for duty as an S-3 operations officer at the Defense Language Institute Foreign Language Center.  On 1 June 2010 he was promoted to the rank of major.  He is currently attending Chinese language training.

18.  The contested OER does not contain the specific incidents surrounding the applicant's relief.  Therefore, a review of the commander's inquiry executive summary is necessary to determine what actually happened in this case.  The applicant was accused of firing on and ordering his Soldiers to fire on dogs where there was no military necessity; of firing his pistol at a flak vest at a police station when it was unnecessary; for ordering his gunner to reduce an IED by fire, which is not an accepted practice; for shooting from his vehicle with the window rolled down; and for firing on a friendly Iraqi position.  The applicant contends that he never received a copy of the actual commander's inquiry or the anonymous letter.  The only documents he received were the executive summary prepared by the squadron commander and the supporting statements and that he received them from the executive officer.

19.  In regard to the accusation of shooting feral dogs or ordering Soldiers to shoot at feral dogs, the applicant submitted a sworn statement to the effect that in every instance where dogs were shot by his direction, either directly or indirectly, the dogs were impeding the mission or were determined to be dangerous to his men.  Only one statement during the commander's inquiry indicated that a dog was shot by the applicant that was not a threat (in the individual's opinion).  The applicant provided numerous statements from members of the unit who were present at the time to corroborate his statement and attest to the constant problems encountered with numerous feral dogs.

20.  In regard to shooting at a flak vest at a police station, the applicant explained that his unit had constructed a firing range at the Iraqi police station to be used by Iraqi Police, Iraqi Soldiers, and his Soldiers to improve and maintain proficiency and that the partial flak vest that was found at the range was used as a target.  He also explained that the vest was fired at with pistol and rifle ammunition to determine the effectiveness of both.  There were no statements in the executive summary to support that allegation or to explain the circumstances associated with that incident.

21.  In regard to the allegation that the applicant either conducted or directed reconnaissance by fire by engaging possible IED's with weapons fire, which was not an approved TTP, the applicant provided credible statements from officer and enlisted personnel, to include combat engineers responsible for route clearance, that clearly state that such methods are commonly used to engage possible IED's.  The applicant explained in his statement that in each instance in which he did so, the route had not been cleared and waiting for an explosive ordnance unit to clear a possible IED would have put his convoy and his men in danger.  Additionally, it was unsafe to try and turn around or go around the possible IED's.  He admits to using such methods and contends that it was a sound tactical decision made on the scene at the time.  He further explains that his convoy had been previously attacked by rocket-propelled grenades when he attempted to wait for explosive ordnance detachments to arrive and some his Soldiers were killed/wounded.

22.  In regard to the allegation that he shot from his vehicle with the window down, the applicant admits to doing so and explains that in every instance it was to neutralize a threat to his convoy.  He also explained that he and his Soldiers routinely test-fired their weapons at the test-fire pit (pit his unit built at the Iraqi Police Station) and they did so from both inside and outside their vehicles.  He further stated that there were occasions when he was shooting from his vehicle and the members of the convoy were unaware of the threats he was encountering because they did not have radios and could not communicate with his vehicle, which was a constant on-going problem.

23.  In regard to the allegation that he fired on a friendly Iraqi position, the applicant explains that on 29 January 2008 his convoy was returning from Combat Operations Post Raby at night in black-out drive and he was the last vehicle in the convoy.  His XO was in the lead vehicle and as they were approaching a known hostile intersection, his XO radioed that he was taking fire.  After confirming that there were no known friendly forces in the area, he gave the order to identify the source and return fire.  The convoy exited the intersection with no casualties and returned to base.  He reported the incident when he returned and 2 days later was told that it was a friendly position and they complained of being fire upon.  The commander responsible for the unit informed him that they routinely shoot at shadows and he informed the commander that in the future they would approach the intersection with lights on; however, the next night when he did so, he was hit by a rocket-propelled grenade.  He went on to state that he immediately reported the incident as a friendly fire incident to his squadron commander and it was determined that no one was injured during the incident.  The applicant has provided numerous credible statements attesting to the fact that the Iraqi Forces unit had not been reported to be in the position in question and was not known to be in the area.  The statements are made by persons who were in a position to know such information.

24.  The applicant also provides statements from individuals who were notified that they were required to be interviewed by the officer conducting the commander's inquiry because they were named in the anonymous letter; however, they were not interviewed.

25.  The applicant does not provide copies of the rules of engagement, the directive governing animal control, or the directive involving the engagement of IED's using direct fire because they are all documents classified as "SECRET."  However, he provides points of contact who have knowledge and access to those directives.

26.  A review of the applicant's OER history shows that with the exception of the contested report, he has always been rated as a superb officer with maximum ratings.

27.  The applicant explains that he became angry because of the lack of urgency by his chain of command involving an incident in which the commander and one Soldier of his sister unit were killed by an Iraqi Soldier and three other Soldiers and a civilian interpreter were wounded on 26 December 2008 before the Iraqi Soldier fled the scene.  The Iraqi Soldier was later apprehended and determined to be an insurgent infiltrator.  However, it was not initially reported that the Soldiers had been killed or wounded by Iraqi forces.

28.  Army Regulation 623-3 establishes the policies and procedures for the OER system.  It provides that an OER is presumed to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also provides 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.

29.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  It provides, in pertinent part, that applicant's 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.  While the opinions and judgment of the rating officials of the contested report are not in question, the information used to form those opinions and make the judgments is questionable.

2.  The evidence in this case shows that a very hasty commander's inquiry was conducted over a period of approximately 4 hours based on an anonymous letter received by the executive officer of the applicant's squadron.  It also appears that only 10 people were interviewed (including the applicant) out of a unit of approximately 250 and that the battalion commander condensed the commander's inquiry, which was conducted by the operations officer (a major), into a page and a half summary.

3.  A comparison of the executive summary of the commander's inquiry to the supporting statements provided by the applicant and the Soldiers who provided statements and were in a position to know what happened at the time makes it appear that all of the facts were not taken into account at the time and that the incidents in question were made to appear to be worse than they were.

4.  The evidence provided by the applicant in the form of sworn statements that were all made in Iraq by individuals who were in a position to observe the incidents in question overwhelmingly indicate that the applicant was acting in a manner that would best ensure the safety of the Soldiers entrusted to his care and his mission.

5.  While the rating officials may believe that he was not operating in a manner in which they expected, the applicant deserved the consideration of counseling for his shortcomings or a fair and impartial investigation of the facts and circumstances involved, which he requested on multiple occasions.  He also should have been provided a copy of the actual commander's inquiry and a copy of the anonymous letter that led to the commander's inquiry.

6.  It is also noted that the contested OER has not hindered his career to date and yet he has remained adamant that the report does not accurately portray the facts and circumstances surrounding his performance and which led to his relief for cause.  The applicant asserts that the incident in which his convoy fired upon an Iraqi Army squad after being fired upon first is just one example of the misrepresentations reflected in the contested report.  His assertions appear to have merit because it does not pass the common sense test that Soldiers would not be expected to return fire when fired upon, regardless whether the forces were friendly or not and especially since it was at night and the forces had not been reported to be located in the area.

7.  It has never been U.S. policy that our Soldiers would ever be placed in a position that they were not allowed to defend themselves.  While there are rules of engagement that address when, where, and how Soldiers are to engage the enemy, they have never been restricted from defending themselves when threatened, regardless of the circumstances.

8.  While there may have been an agenda by the rating chain that is not apparent and which is alleged by the applicant, the bottom line in this case is that the applicant was entitled to know why he was being relieved for cause and the reasons needed to be valid and explained up front.  The evidence submitted by the applicant overwhelmingly supports his position that the investigation was flawed and inaccurate and did not portray the actual facts that were used to relieve him.

9.  Although there are many unanswered questions in this case and while it is not the policy of the Board to attempt to second-guess commanders in the field, the discrepancies noted between the investigation conducted and the statements provided by the applicant are of such significance that the applicant should be granted relief in this case.

10.  Accordingly, it would be in the interest of justice to remove the contested report due to the inaccuracy of the report, to declare the period non-rated, and to replace it with a non-prejudicial statement.

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 covering the period 24 May 2007 through 18 February 2008 and all related documents, by declaring the period non-rated, and by placing a non-prejudicial statement in its place.



      __________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)                                         AR20100012830



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ABCMR Record of Proceedings (cont)                                         AR20100012830



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