IN THE CASE OF:	  

		BOARD DATE:	 14 February 2012 

		DOCKET NUMBER:  AR20110010603 


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 General Officer Memorandum of Reprimand (GOMOR), dated 15 November 2007, from the restricted section of the applicant's Official Military Personnel File (OMPF).

2.  Counsel states:

	a.  the applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) for removal of the GOMOR in November 2010 and he was granted partial relief in the form of having the GOMOR transferred from the performance section to the restricted section of his OMPF;

	b.  this appeal contains newly-discovered information that was not presented to the DASEB at the time of their decision;

	c.  the applicant was investigated after a series of complaints made against him by subordinate profis medical officers;

	d.  Lieutenant Colonel (LTC) T------- was appointed as an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) investigating officer (IO) and he looked into five very specific and different allegations, ranging from assaulting a fellow officer, to fraternization, to being derelict in his duties;

	e.  Colonel (COL) K----- was appointed as the AR 15-6 IO on 24 September 2007 and in his findings and recommendations he found fault with the applicant for everything possible;

	f.  COL K----- was removed as the IO based on his bias and prejudice against the applicant;

	g.  the DASEB found that there was no evidence of COL K----- being appointed as an IO in the case, and as such, the applicant's allegations were speculative;

	h.  at the time of the investigation COL K----- was on probation with the State Board of Dental Examiners of California;

	i.  while COL K----- was removed as the IO in the applicant's case, his reports and findings had already been presented to the command;

	j.  the actions of the command clearly indicate they relied on Colonel K-----'s report instead of LTC T-------'s report, the properly-appointed IO;

	k.  the consistent theme throughout LTC T-------'s report was that there was no specific evidence to substantiate any of the claims made against the applicant;

	l.  although LTC T------- believed the applicant may have a strong personality and at times was demanding of his staff, he did not recommend any corrective action be taken against the applicant;

	m.  10 days after the investigation was completed, the applicant was issued a GOMOR for everything LTC T-------'s investigation cleared him of;

	n.  AR 15-6 provides procedural rights when substantial errors are found to affect an individual's substantial rights;

	o.  Since COL K----- was removed as the IO due to prejudice against the applicant, the regulation requires the appointing authority to set aside all findings and recommendations and refer the case to a new IO;

	p.  the command went through the charade of appointing a new IO, but used the information gathered during COL K-----'s investigation to punish the applicant;

	q.  recommendations were made for the GOMOR to be filed locally, but the commanding general (CG) disagreed and filed the GOMOR in the applicant's OMPF based on prejudicial information obtained during the first investigation;

	r.  the GOMOR was based on speculation and rumor; and

	s.  the DASEB did not have the information regarding COL K-----'s probation, nor his investigative findings when making their decision.

3.  Counsel provides a "Brief in Support of Application for Removal of OMPF Entry" and the enclosures listed therein.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service, on 8 September 1984 the applicant accepted an appointment in the U.S. Army Reserve (USAR) in the rank of second lieutenant (O-1).  He was ordered to active duty on 15 June 1998 for a period of 4 years.

2.  He was promoted through the ranks to major (O-4), effective 12 June 2004.

3.  The applicant was the Detachment Commander of the 250th Forward Surgical Team (FST) at Tallil, Iraq.  

4.  On 24 September 2007, the applicant's battalion commander appointed an AR 15-6 IO (COL K-----) to investigate into the allegations that:

	a.  in late July or early August he, a 61J general surgeon by training, supervised an appendectomy performed on a U.S. Soldier by two health care specialists and that at no time did he actually perform or assist in the surgical procedure; and

	b.  the 250th FST was a hostile work environment and specifically, the applicant had been frequently verbally abusive, on at least one occasion yelled at a physical therapist in front of several Soldiers in the waiting room, threatened physical violence to his subordinates, and on at least on occasion committed an assault consummated by battery by grabbing a Soldier's uniform.

5.  On 19 October 2007, the IO notified the applicant's commander of the facts, findings, and recommendations of the allegations.  The IO, after careful consideration and examination of the evidence, found:

	a.  on the afternoon of 10 July 2007, a heated verbal argument between the applicant and a captain escalated into a physical assault upon which the applicant took the captain and shoved him into a wall resulting in a cracked wall;

	b.  on 7 August 2007, the applicant allowed an invasive surgical procedure (open appendectomy) to be performed on a Soldier by two sergeants;

	c.  no evidence that the applicant and another major engaged in an adulterous affair; however, their relationship was clearly inappropriate;

	d.  evidence of unqualified personnel in the 250th FST administering prescription drugs to patients;

	e.  the applicant had been verbally abusive to personnel in his unit and to other Soldiers; and

	f.  the applicant created a command climate of hostility and intimidation and Soldiers were afraid to take action or speak up due to fear of reprisal, either verbally or physically.

6.  The IO recommended that no action be taken against the applicant, that he should receive a GOMOR for assault and inappropriate relationship, and that measures be taken to ensure members of the command who provided evidence against him were protected from reprisal.  The IO noted that the applicant's actions concerning his medical care should be the subject of a Clinical Quality Management/Quality Assurance Review and any actions that the Quality Assurance Board deemed appropriate.

7.  On 24 October 2007, the Task Facility (TF) 62nd Medical Brigade, Chief of Staff appointed another IO (LTC T-------) to investigate the facts and circumstances relating to allegations of misconduct by the applicant.  Specifically allegations that:

	a.  the applicant assaulted the same captain mentioned in the prior investigation;

	b.  the applicant allowed unauthorized personnel to order and administer prescription drugs;

	c.  the applicant and the same major mentioned in the prior investigation engaged in an improper relationship and if so, the dates, the impact the relationship had on the morale of the unit, and if the relationship violated
AR 600-20 (Army Command Policy and Procedures);

	d.  the applicant and the major violated LSA Adder Garrison Living Quarters Policy by being in the other's quarters between the hours of 2200 and 0600 hours; and 

	e.  the applicant was derelict in the performance of his duties by failing to answer pages while on call, failing to see emergency room patients, creating an atmosphere where enlisted personnel were reluctant to page him, and failing to examine a patient with a collapsed lung.

8.  On 5 November 2007, the IO notified the Commander, TF 62nd Medical Brigade of his facts and findings.  The IO found:

	a.  in the matter of the assault allegation, tempers "flared" and there was some physical contact, but it was impulsive and reactionary under stressful conditions and no one was hurt;

	b.  there was not enough evidence that the applicant assaulted the captain to proceed with any administrative or punitive action;

	c.  no evidence that prescription medication was ordered or administered in an irresponsible or inappropriate manner;

	d.  there was not enough evidence that the applicant allowed unauthorized personnel to administer prescription drugs to proceed with any administrative or punitive action;

	e.  although most of the personnel interviewed stated that the applicant and the major were frequently together, only a relatively few thought the relationship caused a decline in morale;

	f.  no substantiation that the applicant's and the major's relationship was improper and in violation of the provisions of AR 600-20, paragraph 4-14b;

	g.  there was not enough evidence of fraternization to proceed with any administrative or punitive action;

	h.  there were times, probably only briefly, when the applicant was in the major's living quarters between the hours of 2200 and 0600;

	i.  there were only a few who stated they were witness to one major entering the other's quarters at various times of the day and early morning;

	j.  there was not enough evidence that the applicant violated the Garrison Living Quarters Policy to proceed with any administrative or punitive action;

	k.  no substantiation that the applicant was derelict in the performance of his duties with respect to patient care, failing to answer his pages, refusing to see patients in the emergency room, or creating an atmosphere where enlisted personnel were afraid to page him;

	l.  the applicant intimidated and could be verbally abusive to others;

	m.  it could be true he treated the other officers unprofessionally, he was disrespectful to them in front of others, and his communication with fellow officers was poor; and

	n.  there was not enough evidence that the applicant was derelict in the performance of his duties to proceed with any administrative or punitive actions.

9.  The IO recommended the applicant attend an anger management class and that the applicant be moved to another unit upon return to his home duty station.

10.  On 15 November 2007, the applicant received a GOMOR for disobeying orders, dereliction of duty, conduct unbecoming an officer, and assault on a commissioned officer.  The Deputy CG, the issuing authority, stated:

	a.  he assaulted the captain by grabbing him by the lapels of his uniform and pushing him into the wall hard enough to crack the wall;

	b.  he failed to come to the hospital on numerous occasions when called or paged, thereby putting patient care at risk;

	c.  he fraternized with a married female officer whom he rated, visiting her in her quarters after hours in violation of the Garrison visitation policy; and

	d.  he damaged good order and discipline in his unit due to the partiality he showed the major.

11.  The applicant was told the reprimand was imposed as an administrative measure and not as punishment under the Uniform Code of Military Justice.  The CG told the applicant he was considering filing the reprimand in his OMPF; however, he would not make a final determination until after he received and considered any response he (the applicant) might make.

12.  The applicant submitted a response to the GOMOR denying that he assaulted the captain and offering an explanation to the events that took place that day.  He denied placing his patients lives in danger and he stated the IO (COL K-----) did not interview the three patients to whom he was accused of being derelict in the performance of his duties.  He stated that in LTC T-------'s findings he had examined two of the patients in question, he treated one of the patients, and he was not paged to examine the third patient in question.  He stated there was not one issue regarding his professional or personal behavior brought forward by COL K-----, the emergency room director, the facility commander, or the 146th TF commander.  He stated had he put patients' lives in danger, one of these individuals would have been contacted.  He stated that
LTC T------- could not substantiate the allegation that he was derelict in his duties.  The applicant acknowledged he displayed poor judgment and opened himself to perceptions of an inappropriate relationship with the major, but
LTC T------- could not substantiate the allegation that their relationship was improper and in violation of AR 600-20.  He stated his performance record during his command was counter to the image of him presented in the investigations.  He stated he honorably served in the Army and with integrity for over 23 years and he apologized for the perception he created that led to some of the false allegations.   He stated he did what it took to modify his leadership style and sought opportunities to improve.  He requested that the GOMOR be rescinded or filed locally.

13.  Although the applicant's brigade and battalion commanders recommended that the GOMOR be filed locally, on 1 December 2007 the CG directed the GOMOR be filed permanently in his OMPF.

14.  The applicant and his counsel petitioned the DASEB for removal of the GOMOR from his OMPF or, in the alternative, transfer the GOMOR from the performance section to the restricted section of his OMPF.  On 10 November 2010, the DASEB granted partial relief and directed transfer of the GOMOR to the restricted section of his OMPF.  The DASEB stated that based on his date of rank, he was not selected for promotion during the Fiscal Year (FY) 2009 LTC Promotion Selection Board.  The DASEB concluded that the applicant provided 

sufficient evidence to show the GOMOR had served its intended purpose and that it was in the best interest of the Army to transfer the GOMOR to the restricted section of his OMPF.

15.  The applicant was promoted to LTC on 1 October 2011.

16.  Counsel submits the applicant's Officer Evaluation Reports showing he received outstanding performance ratings during the periods 1 July 2008 through 30 June 2009, 12 January 2007 through 15 September 2007, and 18 April 2005 through 20 December 2005.  He submits Permanent Order Number 167-057 awarding him the Bronze Star Medal.  He also submits a Stipulation in Settlement of Accusation that shows the Board of Dental Examiners, Department of Consumer Affairs, State of California, revoked the IO's (COL K-----'s) certificate to practice dentistry.  However, said revocation was stayed and he was placed on probation to the board for a period of 5 years subject to the terms and conditions.  The stipulation was approved and adopted by the Board of Dental Examiners as its decision on 17 March 2000.  The decision became effective on 17 April 2000.

17.  AR 600-37 (Unfavorable Information) sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  It states:

	a.  once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority; and

	b.  unfavorable documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.  Documents can be removed upon a showing of clear and convincing evidence that the document is untrue or unjust in whole or n part.

18.  AR 15-6 states unless otherwise provided by another directive, the appointing authority is neither bound nor limited by the findings or recommendations of an investigation or board.  Therefore, the appointing authority may take action less favorable than that recommended with regard to a 

respondent or other individual, unless the specific directive under which the investigation or board is appointed provides otherwise.  The appointing authority may consider any relevant information in making a decision to take adverse action against an individual, even information that was not considered at the investigation or board.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contentions have been noted and the supporting evidence has been considered.

2.  Counsel has failed to show, by clear and convincing evidence, error or injustice in the action taken by the CG to permanently file the GOMOR in the applicant's OMPF.  Counsel has also failed to show the statements in the GOMOR are untrue or unjust.

3.  The applicant had two separate investigations with two different IOs.  Counsel contends that the first IO was prejudiced against the applicant and he was removed as the IO.  There is insufficient evidence to support that contention.

4.  The evidence shows the applicant's battalion commander initiated an investigation on 24 September 2007.  The TF 62nd Medical Brigade Chief of Staff initiated a second investigation on 24 October 2007.  The CG considered all of the evidence prior to making a decision for the filing status of the GOMOR.  The fact that the findings and recommendations of the two IO's were different does not show error in findings and the ultimate decision by the CG.

5.  In accordance with the applicable regulation, the appointing authority is neither bound nor limited by the findings or recommendations of an investigation. The appointing authority may take action less favorable than that recommended with regard to a respondent or other individual, unless the specific directive under which the investigation or board is appointed provides otherwise.  The appointing authority may consider any relevant information in making a decision to take adverse action against an individual, even information that was not considered by the investigation or board.

6.  The Stipulation in Settlement of Accusation counsel submits showing the first IO's revocation of his certification to practice dentistry was placed on probation for 5 years on 17 April 2000 has no bearing in this case.  Counsel's contention that the DASEB would have removed the reprimand entirely is speculation at best.  The IO in question was not appointed until 24 September 2007.  

There is no evidence in the available record showing the IO was on probation at the time he was appointed IO or how being in probation impacted the investigation.

7.  The DASEB transferred the GOMOR to the restricted section of his OMPF based on intent served.

8.  The applicant was promoted to LTC effective 1 October 2011.  The GOMOR is properly filed in the restricted section of his OMPF and there is no basis for its removal.

9.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant/counsel'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)                                         AR20110010603



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ABCMR Record of Proceedings (cont)                                         AR20110010603



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