IN THE CASE OF:	  

		BOARD DATE:	    19 May 2011

		DOCKET NUMBER:  AR20100021456 


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 transfer of his 10 July 2006 Relief for Cause Officer Evaluation Report (OER) from the performance section to the restricted section of his Official Military Personnel File (OMPF).

2.  The applicant states the OER has served its purpose.  He takes full responsibility for his actions and he accepted his punishment in the form of the nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) and General Officer Memorandum of Reprimand (GOMOR) that he received.  A 2007 Officer Retention Board voted unanimously to retain him following his misconduct.  He faithfully continued to serve although he was non-selected for promotion four times, which resulted in his retirement when he reached 20 years of service.

3.  The applicant provides:

* 19 letters of support that were used to support prior actions by the Department of the Army Suitability Evaluation Board (DASEB)
* his request to transfer his GOMOR to the restricted section of his OMPF
* his request for restoration of his Special Forces Tab
* his request for reinstatement to his Career Management Field

CONSIDERATION OF EVIDENCE:

1.  The applicant served on active duty as a U.S. Army Reserve enlisted Soldier from 27 July 1986 to 30 June 1987.  He attended the U.S. Military Academy, and was commissioned as a Regular Army second lieutenant, Field Artillery Branch, on 1 June 1991.  He converted to the Special Forces Branch in March 1997 and he was promoted to the rank/grade of major (MAJ)/O-4, effective 1 June 2002.

2.  While serving as the Commander of B Company, 3rd Battalion, 3rd Special Forces Group (Airborne) at Forward Operating Base (FOB) Courage, Mosul, Iraq, the applicant received a GOMOR, a Relief for Cause OER, and NJP.  The reason for these actions is shown as a violation of CENTCOM General Order Number 1A by:

	a.  consuming alcohol at FOB Courage during a combat deployment;

	b.  tolerating the possession and consumption of alcohol by members of his unit and other Soldiers while serving at FOB Courage;

	c.  providing multiple false official statements on separate occasions to separate investigating officers denying the consumption of alcohol; and 

	d.  providing multiple false official statements on separate occasions to separate investigating officers denying any knowledge of alcohol consumption by members of his unit and other Soldiers while serving at FOB Courage.

3.  In addition to receiving the GOMOR, NJP, Relief for Cause OER, and his loss of his command position, the applicant was also removed from his career management field and his authorization for the Special Forces Tab was revoked.

4.  The applicant was considered for but not selected for promotion to lieutenant colonel in 2007, 2008, 2009, and 2010.

5.  The applicant provides six letters of recommendation from senior officers that were utilized in the course of his 2007 Show Cause Board.  All praised him for his outstanding service and concluded the actions taken against him were more than adequate to address his lapse of judgment.

6.  In August 2008, the applicant submitted three letters from senior officers, in support of his request for transfer of his GOMOR and the NJP action to the restricted section of his OMPF.  All three letters praised him for his outstanding service following the imposition of these administrative actions.

7.  In September 2008, the applicant submitted four letters, including one from the general officer who imposed the NJP and the GOMOR, recommending restoration to his career management field and reinstatement of his Special Forces Tab.

8.  Additionally, in September 2008, the applicant submitted six letters from senior officers recommending he be allowed to retire in the rank/grade of MAJ/O-4.  These officers stated that he was a highly successful officer, both before and after the misconduct.  All noted that, in spite of the misconduct and removal from his normal career management field, he still preformed in an exemplary manner and the misconduct was an isolated incident.

9.  On 2 October 2008, the DASEB approved the transfer of the NJP, GOMOR, and all related documents to the restricted section of his OMPF based on the determination that they had served their intended purpose.  It was also determined that these favorable actions did not warrant referral to a Special Selection Board.

10.  On 9 February 2010, Headquarters, U.S. Army, Special Operations Command, Fort Bragg, NC, granted the applicant relief and reinstated him to the 18 Series Career Management Field and reinstated his Special Forces Tab.

11.  On 30 June 2010, the applicant was retired by reason of sufficient service for retirement and he was transferred to the Retired List in the rank/grade of
MAJ/O-4.

12.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the officer evaluation function of the military personnel system and provides 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 Officer Evaluation Reporting System.  It states 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he believes his Relief for Cause OER has served its intended purpose.  He took full responsibility for his actions and accepted his punishment in the form of the NJP and a GOMOR.  A 2007 Officer Retention Board voted unanimously to retain him.  He faithfully continued to serve although he was passed over for promotion four times, which resulted in his retirement upon reaching 20 years of service.

2.  Evidence shows the applicant's OER was proper and correct.  The applicant does not deny that it was valid and appropriate at the time it was issued.  The statements submitted showing he had overcome the negative aspects of the misconduct and had served with honor and distinction both prior to and following his misconduct were provided for other purposes and, although they resulted in favorable actions, they do not address the issue of moving the OER.

3.  The DASEB transferred the related GOMOR and the NJP to the restricted section of his OMPF.  This transfer does not negate the fact that he was relieved of his duties due to his chain of command's loss of confidence in his ability to lead Soldiers at the time the OER was created.

4.  The fact that the applicant was able to overcome this loss of confidence is commendable; however, it does not negate the misconduct and the reason for the Relief for Cause OER.

5.  The record does not show and the applicant has not provided evidence that shows that his raters and senior raters did not comply with the regulatory requirements in evaluating him in a fair and unbiased manner.  By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied 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.

6.  In as much as this decisional document contains references to actions and documents that have already been transferred to the restricted section of his OMPF, it is appropriate that these Proceedings also be filed in the restricted section of his OMPF to preserve the prior favorable actions.

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)                                         AR20100021456



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ABCMR Record of Proceedings (cont)                                         AR20100021456



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