IN THE CASE OF:	  

		BOARD DATE:	  25 January 2011

		DOCKET NUMBER:  AR20100017383 


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 that the Relief for Cause Officer Evaluation Report (OER) for the period ending on 3 October 2007 be removed from his official records and that he be reinstated to command. 

2.  The applicant states, in effect, that the OER should be removed from his records and he should be restored to command because the Regional Readiness Command (RRC) failed to promote a fair command climate, failed to provide him with the appropriate safeguards during an equal opportunity (EO) investigation, and improperly relieved him from command. 

3.  The applicant provides 24 exhibits with his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board grant the applicant’s request to remove the contested OER and to reinstate him to his command position.

2.  Counsel states the RRC failed to promote a fair command climate and failed to provide him the appropriate procedural safeguards during the EO investigation due to one of the investigators having a personal relationship with the involved party.  He goes on to state that as a result of these actions and due to cultural differences the RRC improperly relieved the applicant of his command. 

3.  Counsel provides a 10-page brief of the applicant’s case.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in the United States Army Reserve (USAR) in the rank of captain when he accepted an Active Guard Reserve (AGR) assignment as a commander of an engineer company located in American Samoa on 29 May 2007.

2.  On 24 September 2007, an officer was appointed to conduct an investigation of the applicant’s unit regarding allegations that the applicant had created a hostile work environment and that he had engaged in sexual harassment and discrimination.  The investigating officer (IO) found that all of the allegations were substantiated and recommended that the applicant be removed from command.  The appointing authority (a brigadier general) non-concurred with the findings and recommendations of the IO.  He concluded that while the applicant demonstrated poor leadership, judgment and behavior the allegations against him were not substantiated in accordance with the applicable regulations.  He further directed that the applicant’s new commander be informed of the circumstances of the investigation and informed that the applicant showed poor leadership, judgment and behavior in swearing, drinking on duty, and wearing inappropriate attire.  He also directed that the investigation process be fixed. 

3.  On 2 October 2007, the applicant's battalion commander, who was located in Hawaii, notified him that he was being relieved for cause.  He cited as the reason for his actions that the applicant admitted to inviting four enlisted female Soldiers into his private quarters, not part of an officially sanctioned function, and he had continued to conduct training meetings at his private quarters after receiving explicit verbal and written instructions not to do so. 

4.  On 13 October 2007, he received a Relief for Cause OER covering the period 29 May 2007 through 3 October 2007.  The rater (battalion commander) indicated that he did not see a climate developing in his command that fostered trust and esprit de corps and after the applicant violated his written EO policy, he had no choice but to relieve him.

5.  The applicant was subsequently deployed to Iraq for duty as an assistant plans officer in the 4th Infantry Division.  After completing his tour in Iraq he was transferred to an AGR position in Montgomery, Alabama.  He was promoted to the rank of major on 28 July 2009.

6.  There is no evidence in the available records to show he appealed the contested OER to the Officer Special Review Board (OSRB).

7.  There is also no evidence to show the applicant requested that a commander’s inquiry be conducted.

8.  Army Regulation 623-3 establishes the policies and procedures for the OER system.  It provides, in pertinent part, that 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.  Each report must stand alone.  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.

9. Army Regulation 623-3 also provides, in pertinent part, 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.      

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that the contested OER should be removed from his OMPF because the RRC failed to promote a fair command climate, failed to provide him the appropriate procedural safeguards during an Equal Opportunity Investigation, and improperly issued him a Relief for Cause OER has been noted and appears to lack merit.

2.  The applicant was relieved for cause for having female enlisted Soldiers in his quarters and for continuing to conduct training meetings in his quarters after being directed not to do so by his rater/battalion commander.  These actions do not appear to have any bearing on his contentions and reflect poor judgment on his part.

3.  In regard to his command’s failure to promote a fair command climate, the fact that the battalion commander directed an investigation is indicative that the command was concerned with the command climate. 

4.  Additionally, the fact that the commanding general rejected the findings of the investigation is also indicative that procedural safeguards were in place.  However, it was within the battalion commander’s authority to relieve him for his misconduct, especially after the applicant continued to ignore the commander’s directions.  

5.  Additionally, the applicant has failed to show through convincing evidence that the contested OER does not reflect the objective evaluation of his rating chain at the time and that it does not properly reflect the rating chain’s evaluation of his performance and potential during the period in question.     

6.  Accordingly, the contested OER appears to represent a fair, objective and valid appraisal of his performance and potential during the period in question.  Therefore, there appears to be no basis to remove the OER from his records or to restore him to command.

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)                                         AR20100017383



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ABCMR Record of Proceedings (cont)                                         AR20100017383



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