IN THE CASE OF:	  

		BOARD DATE:  26 July 2012

		DOCKET NUMBER:  AR20110025116 


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, in effect:

	a.  Removal of the applicant's Relief for Cause (RFC) Officer Evaluation Report (OER) for the period 23 December 2000 through 7 May 2001 and his General Officer Memorandum of Reprimand (GOMOR), dated 11 May 2001, from his official military personnel file (OMPF).

	b.  That the applicant be referred to a Special Selection Board (SSB) for promotion consideration to colonel. 

2.  Counsel states, in effect:

	a.  In May 2001, the applicant (a major) was serving as the commander of Company F, 1st Battalion, 1st Special Warfare Training Group.  Four months earlier he received an optional Complete the Record OER describing him as "easily the best of the 22 commanders."  On 7 May he was relieved ostensibly for "a pattern of misconduct," refusal to obey an order, and threatening his battalion commander.  These allegations were untrue and grossly misrepresent the events surrounding the applicant's relief.

	b.  As part of his response, the applicant requested a commander's inquiry but no inquiry or investigation was conducted. 

	c.  Subsequently, the applicant was recommended for promotion to lieutenant colonel.

	d.  Following 11 September 2001, the applicant was deployed 90 months, this included 41 consecutive months (from 2005-2008).

	e.  As a result of his reprimand and RFC OER he was not selected for battalion commander or promoted to colonel.

	f.  He was eventually forced to retire on 30 September 2011.

	g.  Preoccupied with his mission during a time of war, he did not appeal his OER in a timely manner, nor did he seek removal of this reprimand from his record until recently.

	h.  The Department of the Army Suitability and Evaluation Board (DASEB) transferred the GOMOR from the performance fiche to the restricted fiche.

	i.  A concurrent OER appeal was denied.

	j.  The charges contained in the GOMOR and the RFC OER are untrue and unjust.  He was relieved because he would not compromise his integrity.  He declined to present his commanding general a misleading briefing.  

   k.  Given the circumstances of this case, an inquiry was clearly warranted.  There were several witnesses.
   
3.  Counsel provides 11 enclosures outlined in the "List of Exhibits" page attached to the application.

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Regular Army, the applicant was commissioned a second lieutenant on 22 February 1985 and he entered active duty.  He was promoted to major on 1 August 1996.  

2.  The contested RFC OER covers the period 23 December 2000 through 
7 May 2001 (4 months).  In Part IV (Performance Evaluation/Professionalism), the rater placed an "X" in the "No" box in the following items:

* Honor
* Duty
* Loyalty
* Mental (Possesses desire, will, initiative, and discipline)
* Emotional (Displays self-control, calm under pressure) 

3.  In Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His Potential for Promotion), the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" box and placed the following comments in Part Vb:

	"[The applicant] is a tactically proficient officer and in many ways his duty performance throughout this rating period has been excellent.  He is committed to his duties and clearly cares about his Soldiers and the Special Forces community.  However, [the applicant] has engaged in a pattern of misconduct.  On 7 May, 2001, I relieved him from command for gross insubordination and failure to follow orders.  [The applicant] was directed to develop a contingency training plan to meet increasing class load for the Special Forces Qualification Course.  Despite this order, he refused to develop a plan on three separate occasions.  On the third occasion, he immediately and publicly objected to my directive in a belligerent and insubordinate tone.  In the presence of fellow field grade officers and sergeants major, he stood up, slammed his chair into the conference room table and assumed a threatening pose.  He continued to raise his voice in a highly belligerent and insubordinate manner.  I repeatedly warned [the applicant] to watch his tone but he still continued in his attack until I threatened his immediate relief.  I later counseled [the applicant] concerning his misconduct and outlined the seriousness of his actions.  I further articulated that once a decision is made, he has a duty and obligation as an officer and commander to fully support the chain of command, display a positive attitude, and execute the order as though it was his own best idea.  He indicated that he would not support such a policy and said "just suspend me now."  I subsequently suspended him from duty until his relief was approved by the commanding general.  "[The applicant's] misconduct reflects a complete lack of leadership, self control, and discipline.  Such conduct is entirely contrary to his oath of office and shows a total disregard for respect, loyalty, duty, honor, and the chain of command.  I have lost complete trust and confidence in his ability to command.  Do not promote.  Do not select for command or SSC.  Limited potential for future service in the Army." 

4.  In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Do Not Promote" box and "Below Center of Mass Retain" box.  He also placed the following comments in Part VIIc:
	"The majority of [the applicant's] performance during this rating period has been commendable and his unit has achieved some notable successes.  However, his recent insubordinate actions and attitude disappoint me greatly and represent a total disregard for his oath of office and demonstrate a lack of support for his chain of command.  [The applicant] was relieved of his duties as company commander because of his refusal to follow the orders of his battalion commander and his insubordinate belligerent behavior in the presence of his subordinates, peers and a superior officer.  As a result of his inappropriate behavior, non-supportive attitude, and poor judgment, I have lost complete trust and confidence in his ability to command.  He remains technically and tactically proficient but should not be selected for promotion or command.  Due to the nature of the report no OER Support Form was submitted."

5.  On 11 May 2001, he received a GOMOR for failure to follow orders and insubordination.  The imposing authority noted that it was the second GOMOR the applicant had received for such an offense (the first GOMOR was received on 27 October 2000).  On 7 August 2001, the commanding general directed the GOMOR be filed permanently in the applicant's OMPF.

6.  He was promoted to lieutenant colonel on 1 January 2002.  He served five tours in Iraq and four tours in Afghanistan.

7.  In January 2010, he submitted a request to the DASEB to:

* remove an RFC OER and two GOMORs from his OMPF
* be referred to an SSB for promotion consideration to colonel  

8.  In March 2010, the DASEB noted, according to the imposing authority, the applicant was issued a previous GOMOR for the same misconduct as the 2001 GOMOR.  Although the GOMOR was mentioned in the 2001 GOMOR, it is not filed in the applicant's OMPF and was thought to have been locally filed.  Therefore, only the 2001 GOMOR would be considered.  The DASEB determined:

* the overall merits of the case did not warrant the relief requested
* there was insufficient evidence to justify removal or transfer of the 2001 GOMOR to the restricted section of his OMPF 

9.  He submitted an appeal to the DASEB in May 2011 to remove the 2001 GOMOR from his OMPF or transfer it to the restricted portion of his OMPF.  On 
7 July 2011, the DASEB voted to approve his appeal and transferred the 2001 GOMOR to the restricted portion of his OMPF based upon intent served.

10.  In May 2011, he submitted an appeal requesting removal of the contested OER from his OMPF.  In June 2011, his appeal was returned without action because he failed to submit the appeal within 3 years of the through date of the report.

11.  On 31 August 2011, he retired in the rank of lieutenant colonel after completing over 36 years of service. 

12.  A review of the performance section of his OMPF on the integrated Personnel Electronic Records Management System revealed a copy of the RFC OER in question.  The restricted section of his OMPF revealed a copy of the 2001 GOMOR in question.  There is no evidence of a second GOMOR in the applicant's OMPF.

13.  The applicant provided a statement, dated 31 May 2001, from a company sergeant major (SGM) who states:

	a.  The SGM was present on 3 May 2001 and at no time did he witness the applicant assume a threatening pose or become belligerent or hostile.  In his opinion, the applicant was acting out of extreme frustration for not being allowed to explain his position in a satisfactory manner to the battalion commander; each time he tried, he was cut off by the battalion commander.  The SGM did not view the applicant's verbal exchange with the battalion commander as an attack of any sort; the applicant was trying to press home his point, which he was not being allowed to do because the battalion commander kept cutting him off.

	b.  The applicant did not fail in the execution of his duties; he told the battalion commander the plans were developed and the briefing was ready.  

14.  The applicant provided an affidavit, dated 26 February 2010, from a command sergeant major (CSM) who states:

	a.  The CSM found the battalion commander to be the most difficult commander he had worked for, either directly as the senior enlisted Soldier or as a member of a unit.  He was both insecure and impulsive.  He had little interpersonal skills in dealing with his subordinate commanders or their senior sergeants.

	b.  The CSM believes the battalion commander's decision to relieve the applicant was an impulsive act and a reflection of the battalion commander's impulsive nature.

	c.  The CSM believes the majority of the battalion staff saw the need for a shadow program (contingency training plan) in the same light as the applicant (i.e., unnecessary and infeasible).

	d.  The CSM believes the applicant to be a solid officer and an added benefit to any unit he has come into contact with as the applicant was all about results.  

15.  The applicant provided a letter of support, dated 17 November 2011, from a lieutenant general who states:

* he has known the applicant 10 years
* he has served with the applicant during combat tours in Afghanistan and Iraq
* he has absolute trust and confidence in the applicant's integrity, fidelity, and professional skills
* he strongly supports the applicant's requests

16.  The applicant provided a letter of support, dated 3 November 2011, from a second lieutenant general who states:

* he has known the applicant for more than 6 years
* he was able to directly observe his unmatched dedication to duty for 23 consecutive months while he was the Deputy Commander for the Combined Joint Special Operations Task Force – Afghanistan
* the applicant is truly one of the finest officers he has ever served with
* he has complete trust and confidence in the applicant's professionalism and operational expertise
* he strongly endorses the applicant's requests

17.  The applicant provided a letter of support, dated 22 September 2011, from a brigadier general who states:

* he has complete trust and confidence in the applicant's integrity, fidelity and professionalism
* he also recognizes the applicant's inherent talent and his unlimited potential to continue to serve in the Army
* he has known the applicant for more than 10 years
* he has served with the applicant multiple times in combat in Afghanistan
* he endorses his requests




18.  He also provided a letter, dated 21 November 2011, from a CSM who states:

* he had an opportunity to observe the applicant as the commander of Company F, 1st Special Warfare Training Group
* the applicant set and enforced high standards of performance for his instructors
* his leadership style encouraged instructor initiative and challenged his cadre to exceed the expected measures of performance
* his personal bearing, confidence, and competence instilled a sense of trust and team spirit within the company
* he was always candid and truthful in dealings with others regardless of rank
* he was extremely loyal to those with whom he served and company morale was high
* the applicant commanded during a very stressful and difficult time
* the battalion commander was arrogant and dismissive of subordinates
* the battalion commander was intimidating and could be defensive and not very receptive of opposing viewpoints
* he has no knowledge of what conversation took place between the applicant and the battalion commander
* he believes the applicant's frank and candid nature and his loyalty to his Soldiers would probably be misinterpreted by the battalion commander as disobedience

19.  Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted by Headquarters, Department of the Army and included in the official record of a rated Soldier is presumed to be administratively correct; have been prepared by the properly designated rating officials; and represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Requests that an evaluation report in a Soldier’s OMPF be altered, withdrawn, or replaced with another report will not be honored.  The regulation also states that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that clearly and convincingly establishes that:

	a.  the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration; and

	b.  action is warranted to correct a material error, inaccuracy, or injustice.

20.  Army Regulation 623-3, paragraph 3-58, states an OER is required when an officer or warrant officer is relieved for cause regardless of the rating period involved.  Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his/her performance of duty.

21.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the military personnel 
records jacket, the career management individual file, and Army personnel qualification records.  Paragraph 2-4 states, in part, that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records.

22.  Table 2-1 of Army Regulation 600-8-104 states administrative letters of reprimand and OERs will be filed in the performance section.  

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the applicant was relieved ostensibly for "a pattern of misconduct," refusal to obey an order, and threatening his battalion commander and that these allegations were untrue and grossly misrepresent the events surrounding the applicant's relief.  The documents and statements provided by counsel were carefully considered.  However, there is no evidence that the information contained in the RFC OER is not administratively correct, was not prepared by the proper rating officials, and does not represent the considered opinion and objective judgment of the rating officials at the time of preparation.

2.  It appears the applicant was given a mission by his battalion commander; in the applicant's considered opinion it was undoable; when the commander insisted it be done; he rebelled.  Whatever happened in the battalion command and staff meeting on 7 May 2001 is subject to opinion; however, in the battalion commander's opinion, the applicant was disobedient and insubordinate.  This view was apparently shared by the applicant's senior rater, the Group Commander, as that individual concurred with the RFC OER.

3.  Evidence shows the applicant received a 4-month RFC OER covering the period 23 December 2000 through 7 May 2001.  Subsequently, on 11 May 2001, he received a GOMOR for failure to follow orders and insubordination.  

4.  The contested RFC OER was prepared by the properly-designated rating officials and is properly filed in the applicant's OMPF in accordance with the governing regulation.  There is no evidence it was improperly prepared or filed.  Therefore, there is insufficient evidence on which to base removing it from the applicant's OMPF.

5.  Since the GOMOR was properly filed on his OMPF, and subsequently transferred to the restricted section of his OMPF as directed by the DASEB based upon intent served, it would not be equitable to remove the GOMOR from the restricted section of his OMPF.  It should remain there as a historical record.

6.  Based on the foregoing, there is an insufficient basis for granting the 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)                                         AR20110025116



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ABCMR Record of Proceedings (cont)                                         AR20110025116



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