BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20100024225 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the applicant's relief for cause DA Form 67-9 (Officer Evaluation Report (OER)) for the period ending 1 February 2008 and all references to that report from his Official Military Personnel File (OMPF).

2.  Counsel states, in effect, that the report is in error and unjust because the applicant was relieved for cause by a command to which he was not attached, despite the desires of his commander and because he was unjustly relieved for an event that occurred in his previous position and did so with his senior rater’s knowledge.  He further states that while he was relieved for not reporting an incident involving two of his former noncommissioned officers (NCO) for 5 1/2 hours, his rater did not make a report to his commander until 30 hours later and then only when persuaded to do so.  He continues by stating that throughout the duration of the applicant’s assignment to Colombia there was a conflict between the rater and the applicant and the rater had on numerous occasions denigrated the applicant to NCOs under the applicant’s command and to his own staff.  He goes on to state that the applicable regulation provides that an OER will not remark on performance or incidents occurring outside of the period covered unless an exception is granted.  He continues by stating that the applicant has submitted sufficient evidence in his appeal to substantiate that the OER is in error and unjust.


3.  Counsel provides a 19-page brief on behalf of the applicant and a list containing 29 exhibits.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as an infantry second lieutenant on
7 August 2009 upon graduation from Officer Candidate School at Fort Benning, GA on 7 August 2009.  He was promoted to the rank of first lieutenant on
7 February 1999 and to the rank of captain on 1 March 2001.  He transferred to the Special Forces branch in 2002.  He was promoted to the rank of major on
1 February 2007. 

2.  On 29 June 2007, while serving as a senior Mobile Training Team (MTT) chief responsible for a Rural Combat MTT (RCMTT) in Colombia, a raid was conducted in Melgar, Colombia that involved five terrorists (three captured, two escaped).  Intelligence gathered revealed that Americans working in the Melgar area were being targeted by a terrorist cell from the “Teofile Forrero” Front of the Fuerzas Armadas Revolucionarias de Colombia (FARC).

3.  In August 2007, the applicant attended a briefing to discuss the threat and actions taken by the United States personnel to mitigate the threat.  The applicant, during his portion of the briefing, notified his senior rater (SR), the Military Group (MILGP) commander, of his intent to raise the security posture of his team by authorizing the carrying of side-arms.  The SR nodded his head but made no comment.

4.  On 22 November 2007, the applicant was reassigned from his duties as the chief of RCMTT to duties as the operations officer (S-3) for the Planning Assistance Training Team (PATT) in Bogota under the same rating chain.  He was also granted leave to North Carolina after his arrival for Christmas leave and his team did not receive a replacement for him.

5.  On 5 December 2007, he received an annual OER covering the period 16 December 2006 through 15 December 2007 that evaluated him as a senior MTT chief responsible for an RCMTT in Colombia.  He received maximum ratings from his rater and SR and a center of mass placement from his SR. 

6.  On 2 January 2008, the applicant returned to duty in Bogota, Colombia and on 3 January 2008, at approximately 0230 hours, an incident occurred in Melgar involving two NCOs in the rank of sergeant first class (SFC)/E-7) of the applicant’s former RCMTT.  The incident consisted of the two SFC's visiting a bar 


and upon confrontation with local nationals both NCOs brandished their side-arms and one NCO fired a shot in the air before withdrawing.

7.  On 4 January 2008, at 1030 hours, one of the NCOs notified the applicant, who was serving as the operations officer, of the incident the day before.  The applicant attempted to contact a local Fiscalia (prosecutor) in Melgar to ascertain the details from their prospective and received no answer.  He then contacted Melgar’s Chief of National Police (CNP) representative to attain the facts and outcome of the event and he was informed that an individual who appeared to be an American had reported a shot being fired and when the CNP arrived nothing was discovered.

8.  The applicant again called the local Fiscalia in Melgar at 1130 hours and he was informed that the investigation was closed and that it would not be pursued any further.  The applicant again contacted the CNP representative and one of the NCOs involved and found nothing further.

9.  At 1500 hours the applicant notified the deputy PATT Chief (a major) of the incident and of his subsequent actions and contacts.

10.  On 4 January 2008, the Deputy PATT Chief was verbally appointed to conduct a commander’s inquiry into the reporting timeline surrounding the 3 January 2008 event.

11.  On 4 January 2008, the applicant was also counseled by his rater regarding his delay in reporting the weapons discharge incident and he was suspended from his duties as the PATT Operations Officer until further notice.

12.  On 15 March 2008, the applicant was issued a Relief for Cause OER for the period 16 December 2007 through 1 February 2008 (48 days less leave taken to the United States).

13.  In Part V, under Performance and Potential Evaluation, the rater (a lieutenant colonel) states that he relieved the applicant as Operations Officer because he had unilaterally and without authorization modified Mission Policy No. 013 (Firearms Policy), dated 16 October 2007 and altered the U.S. MILGP firearms policy, as they applied to service members previously under his charge. Additionally the applicant admittedly delayed several hours in reporting to his chain of command a serious incident which warranted immediate command attention, and which involved military personnel recently under his supervision who after curfew hours discharged a weapon at or near local nationals outside a drinking establishment.  He rated the applicant’s performance as “Unsatisfactory Performance, Do Not Promote.”
14.  The applicant’s SR and the MILGP commander rated the applicant’s potential as “other” and placed him “below center of mass” on his profile.  His SR stated that he concurred with the applicant’s relief.  He also stated that the applicant failed to report a serious incident that involved U.S. military personnel discharging a weapon aimed at or towards civilian personnel and without authority altered weapons policy for service members previously under his supervision.  He also indicated that there was no near-term potential for promotion but future assignments will determine if lesson was learned and trajectory restored.

15.  The applicant was transferred to Panama for duty as the Senior Joint Planning and Assistance Training Team Chief for Panama.  He remained there for 4 months and then he was transferred to the Intermediate Level Education Course.  He completed that course and he was transferred to Fort Bragg, NC for duty as a commander of a Special Forces company.

16.  The applicant appealed the contested OER to the Officer Special Review Board (OSRB) citing essentially the same reasons he has cited to this Board.  On 9 July 2009, the OSRB denied his appeal.

17.  The applicant provides as evidence to support his contentions a Memorandum for Record (Exhibit 8) from an officer who was present when the applicant briefed the MILGP commander who was also his SR in August 2007, that he was raising the security posture of his team and that one of the measures would be to implement carrying of side-arms by members of his team.

18.  The applicant also provides electronic mail (email) messages from the Commander of the Security Assistance Training Management Organization (SATMO) at Fort Bragg to the MILGP commander in Colombia indicating that he had reservations about the applicant’s rater’s leadership style and that the SR was in violation of not reporting the “Melgar” incident immediately.  He stated that the applicant’s rater did not report the incident to him until 30 hours later and then only when prompted to do so.  Accordingly, if he was recommending punishment to the applicant, he should receive the same punishment.

19.  The applicant also provides email messages from the SATMO commander to the MILGP commander expressing his disagreement with the applicant being relieved for cause.

20.  Additionally, the applicant provides a memorandum from the SATMO commander indicating that he investigated the incident and he was convinced 


that the relief for cause OER was not warranted and that it was a clear injustice to a fine officer.  He also provides copies of memoranda from a general officer and a colonel at Fort Bragg that provide insight to the applicant’s professionalism.

21.  Information obtained by the staff of the Board indicates that a Criminal Investigation Command (CID) investigation of the “Melgar” incident was conducted during the period 15 January to 19 January 2008 and that video media of the incident was obtained by the investigating officer.

22.  On 9 April 2009, the NCO who fired the shot during the incident was convicted by a general court-martial of committing an assault upon an unknown Colombian male by discharging a loaded firearm, two specifications of making false official statements, two specifications of pointing a loaded weapon at unknown Colombian males, and disorderly conduct.

23.  The other NCO entered into a plea bargain agreement and accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military justice (UCMJ) from the commanding general on 15 October 2008 for violating a lawful order not to visit bars or nightclubs after 0100 hours, for violating a lawful order not to consume alcohol within 12 hours of carrying a weapon, and making a false official statement.

24.  Army Regulation 623-3 (Evaluation Reporting System) provides that a rating official may relieve an officer because of information received about a previous reporting period.  When a relief for cause OER is prepared, the rated officer will only be evaluated for performance during the current rating period.  The reason for the relief will be cited in the report and the minimum time requirements for rating officials do not apply.

25.  Department of Defense, U.S. MILGP - Colombia Policy Letter #3 (Force Protection Weapons Policy), dated 12 October 2005 provides, in pertinent part, that deployed missions would retain their assigned weapons at their training site and while carrying weapons they would always have their weapons carry permits issued by the host nation government.  It also provides that no alcohol or medication that may impair judgment was to be consumed 12 hours prior to or while carrying weapons.  Additionally, when outside Bogota, weapons will be carried concealed.

26.  Department of Defense, U.S. MILGP - Colombia Policy Letter #3 (Force Protection Weapons Policy), dated 12 October 2005, was signed by the MILGP commander (applicant’s SR).  That policy letter was reissued on 2 January 2008 with no apparent changes and was again signed by the MILGP commander.
27.  Army Regulation 12-7 (Security Assistance Teams) provides procedures and responsibilities for security assistance teams (SAT) and brings security assistance team management under one regulation.  Effective 23 June 2009, that regulation was changed to provide that the Commander, SATMO would be included in the rating scheme of SAT chiefs.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his relief for cause OER is in error and unjust has been noted and appears to have merit.

2.  The applicant’s rater relieved the applicant for modifying the MILGP weapons policy without authorization as they applied to service members previously under his charge and for his delay in reporting a weapons-related incident.

3.  However, at the time the applicant allegedly modified the weapons policy, he was serving as the Chief of an RCMTT and there is sufficient credible evidence to show that he informed the MILGP commander in August 2007, who was also his SR, that it was his intent based on the immediate threat being discussed to implement the carrying of side-arms by members of his team.  The MILGP commander, who also issued the weapons policy in effect, made no objections to the applicant’s proposal.  Additionally, he supported the relief for cause OER indicating that the applicant had altered the weapons policy without authority, which is questionable at best.  A review of the weapons policy failed to show that the applicant in any way altered the policy as his team was authorized to possess weapons in their location/station.

4.  In any event, the applicant was serving as the PATT operations officer at the time he was relieved for cause and the applicable regulation specifically provides that the rated officer will only be evaluated for performance during the current rating period.

5.  While the applicant admitted that he did not report the weapons incident immediately after being notified, there is no evidence to indicate that he intended to cover-up the incident or not report it at all.  The evidence suggests that he attempted to obtain as much information as possible before reporting the incident 5+ hours later.  While he may have made a bad judgment in that regard, his rater was also just as culpable because he delayed reporting the incident for 30 hours after being notified.  Accordingly, it is not equitable for the applicant to become a career casualty based on the circumstances in this case.

6.  In this case the applicant was relieved for cause for changes he made while serving in his previous assignment based on the threat conditions at the time and he did so with the knowledge of his SR.  His rater reassigned him to a position as the operation officer and he left his team without an officer in charge and the NCOs were left to their own devices.  The NCOs were punished for their misconduct and lack of judgment surrounding the event.  However, it does not make the applicant culpable for their actions because he was no longer in charge of the team.

7.  Therefore, given that the applicant was relieved for cause because of events that occurred outside of the rating period and his performance ratings were improperly based on those events, as a matter of equity the contested report  should be removed from his OMPF and the period of the report deemed unrated time.

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 relief for cause OER for the period ending 1 February 2008 and any and all related documents from his OMPF and replacing it with a non-prejudicial statement declaring the period as non-rated time.



      ________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)                                         AR20100024225



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ABCMR Record of Proceedings (cont)                                         AR20100024225



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