BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20120002378 


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 removal or substantial editing of a relief-for-cause officer evaluation report (OER) for the period 15 September 2007 through 5 April 2008.

2.  The applicant states:

	a.  He would like this OER removed from his official military personnel file (OMPF) or substantially edited from a relief-for-cause to a change-of-rater report.

	b.  During this rating period, he demonstrated a lack of judgment by engaging in inappropriate language with a female Soldier.  Due to his admission of poor judgment, his rater, Brigadier General (BG) W____ F. G____, imposed a relief-for-cause action which subsequently led to the OER from his rater.  He felt the OER was unjustified because it did not reflect his overall performance as the rater's Executive Officer.

	c.  The relief-for-cause letter stated the applicant had solicited a female Soldier.  After an external review, it was determined that he did not solicit a female Soldier, but engaged solely in inappropriate language.  In the 4 years since this incident, he has participated in counseling and leading seminars that address appropriate and inappropriate professional dialogue between male and female Soldiers, to include boundary sensitivities.

	d.  During this 8-month rating period, he had several major accomplishments that were not captured in this report, to include:
* 
organizing fund raisers with both the City Council of Round Rock and the Greater Houston Country Club to raise thousands of dollars to pay for the expansion of the 4th Infantry Division Operation Iraqi Freedom Memorial site
* assisting the Bagdad Operation Command in organizing the weekly Bagdad security meetings to share intelligence and operational information so that it could expand combined operations which later became the model for all Iraqi Major Operations Areas
* personally coordinating several close-air support missions for the 2nd Battalion, 2nd Armored Cavalry Regiment, during the offensive operations in Sadr City
* observing, spotting, and taking pictures of mortar rounds that were being fired during these operations leading to Public Affairs releasing those photographs to news reports so Iran's direct involvement with insurgent operations in Iraq would be revealed
* assisting with coordination of the Division Command Team's visit to every command out-post, joint security station, and forward operating bases in Bagdad Provincial District (130 locations) in 5 months

	e.  He would like the OER removed because it has served its intended purpose and he was not able to contact his former senior rater to appeal the OER.

3.  He provides:

* removal of contested OER recommendation from his former senior rater
* contested OER
* 2007, 2009, and 2011 OER's
* relief for cause, no-contact order, and counseling memorandum
* recommendation for transfer of a memorandum of reprimand to the restricted (R) portion of his OMPF
* memorandum for record (MFR)
* endorsement

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of 

justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military record shows he was appointed in the U.S. Army Reserve on 12 May 1995.  He was commissioned in the Regular Army Chemical Corps as a second lieutenant on 26 June 1995.  He was promoted to major on 1 October 2005.

3.  On 14 September 2007, he received a change-of-duty OER for the period 18 May 2007 through 14 September 2007 for duties as the Battalion Executive Officer.  He was rated as "Best Qualified" and "Center of Mass" by his rating officials.

4.  On 5 April 2008, he was reprimanded for violating the Army's sexual harassment policy and having inappropriate interpersonal communications with Soldiers of different rank, to include junior enlisted Soldiers.  He acknowledged receipt of the reprimand on the same date.

5.  On 5 April 2008, he was relieved for cause due to his misconduct and received a relief-for-cause OER for the period 15 September 2007 through 5 April 2008 for his duties as an Executive Officer.  His rater and senior rater was BG G____, the Deputy Commanding General (CG) for the 4th Infantry Division (Mechanized).  The OER shows the following entries:

	a.  In Part II (Authentication), the rater noted this was a referred OER and the applicant placed an "X" in the "No" block to indicate he did not wish to make comments.

	b.  In Part IV (Performance Evaluation – Professionalism), the rater placed an "X" in the "No" block for item 5 (Respect).

	c.  In Part Va (Performance and Potential Evaluation), the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block.  In Part Vb, he entered the following comment, "I serve as both the rater and senior rater for [Applicant] under the provisions of Army Regulation 623-3 (Evaluation Reporting System), paragraph 2-21."

	d.  In Part Vc, the rater entered the following comment, "[Applicant] is fully qualified for promotion."

	e.  In Part VII(a) (Senior Rater), the senior rater placed an "X" in the "Do Not Promote" block.  In Part VIIb, the applicant was assessed "Below Center of Mass, Retain."  In Part VIIc, the senior rater entered the following comments:

[Applicant] was hand-selected by me to serve as my Executive Officer during deployment to combat operation [sic] in Iraq.  In his daily duties, [Applicant] was exceptional.  He is a highly skilled officer who plans, executes, and coordinates multiple complex tasks simultaneously and to the highest standard.  A substantiated sexual harassment complaint has caused me to doubt his judgment and resulted in his relief for cause from his position by the CG.

6.  On 5 April 2008, BG G____ advised the applicant of his relief from his current assignment as Executive Officer.  BG G____ stated:

	a.  A recent formal Equal Opportunity investigation and an informal investigation pursuant to Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) had uncovered credible evidence that he committed multiple acts of misconduct, to include soliciting a married enlisted woman for sexual acts, inappropriate communications with a married junior enlisted Soldier, and multiple other instances of sexual harassment.  The applicant's misconduct was unbecoming of an officer and gentleman, service discrediting, and prejudicial to good order and discipline.

	b.  In addition to the previous no-contact order the applicant received, he was to have no contact with the named individuals of Division Special Troops Battalion until further notice.  The applicant was hereby ordered not to initiate any contact or communicate with several named individuals either directly or through a third party.

	c.  For the purpose of that order, the term "communications" included, but was not limited to, communication in person, or through a third party, via face-to-face contact, telephone, or in writing by letter, data fax, or electronic mail.  If any of the named individuals initiated any contact with the applicant, he must immediately notify his first-line supervisor or the CG of the facts and circumstances surrounding such contact.  If the applicant felt his professional duties required contact with one of those individuals, the applicant was to contact his supervisor or the CG prior to contacting the individual regarding why he believed he needed to speak with that individual.

	d.  The applicant was further reminded that obstruction of justice and wrongful interference were very serious crimes and each offense carried a maximum punishment of 5 years of confinement, forfeitures of pay and allowances, and a dismissal from the Army.  He was also advised of the required completion of sexual harassment training and the availability of professional counseling.

7.  In the applicant's rebuttal to the reprimand, dated 13 April 2008, he stated that he accepted full responsibility for the decision he made to make inappropriate comments that created a negative perception.  He requested the reprimand be placed in his local file and he be allowed a second chance.

8.  In an MFR, dated 13 April 2008, the Commander, 138th Fires Brigade, stated that although the applicant committed a serious error in judgment, he was truly remorseful.  The applicant did not try to hide what he did and had the courage and character to openly admit he had made a mistake and tried to make amends for his mistake.  The applicant possessed the potential for promotion and positions of greater responsibility.  He had a major positive impact on the organization and the mission.

9.  On 26 April 2008, the CG approved the permanent filing of the reprimand in the applicant's OMPF.

10.  The contested OER was signed by the rater/senior rater and the applicant on 6 May 2008. 

11.  On 14 May 2009, he received an annual OER for the period 7 April 2008 through 6 April 2009 for duties as a Team Operations Advisor.  He received "Best Qualified" and "Center of Mass" assessments by his rating officials.

12.  On 20 June 2011, he received an annual OER for the period 11 June 2010 through 10 June 2011 for duties as a Team Chief.  He received "Best Qualified" and "Above Center of Mass" assessments by his rating officials.

13.  On 24 September 2009 and 3 February 2011, the Department of the Army Suitability Evaluation Board (DASEB) denied his petitions for removal of the 2008 reprimand from his OMPF.

14.  On 13 October 2011 in response to his request for reconsideration, the DASEB voted not to remove the reprimand, but approved its transfer to the restricted portion of the applicant's OMPF, in that the intended purpose had been served and it would be in the interest of the Army.  That action was not retroactive and did not constitute a basis for promotion reconsideration.

15.  The applicant provided a copy of an updated memorandum from his former rater who was the rating official on the relief-for-cause OER.  The individual stated:

	a.  For the preponderance of the applicant's service with him, the applicant was superb.  The lapse in judgment that precipitated the relief action and subsequent OER was based largely on the applicant's admission to using inappropriate and suggestive language with female Soldiers.  Since the incident, the applicant completed counseling, continued to serve exceptionally well in combat operations in Iraq, and on redeployment graduated from Command and General Staff College.  The applicant serves proudly today and his actions continue to reflect his desire, skill, and potential to lead Soldiers of all genders into their Army's future.

	b.  He believed the intent of the relief has been met many times over.  It was in the best interest of the Army for that highly capable officer to be afforded the opportunity to proceed with his military career and the removal of that report would allow that officer to do so.

16.  The applicant also provided a copy of an undated MFR submitted in support of his application, wherein an Equal Opportunity Advisor stated, in effect, that to his knowledge the applicant stated he had not solicited that female Soldier, but he engaged in inappropriate verbal communications, they both made inappropriate statements to one another.

17.  The applicant further provided a copy of a memorandum, dated 7 September 2011, from the Chief, Requirement Determination Division, U.S. Army Maneuver Support Center of Excellence (MSCOE).  The official stated:

	a.  He wholeheartedly endorsed the applicant's request for removal of the reprimand and OER from the performance portion of the applicant's OMPF.

	b.  For the past year, he was the applicant's immediate supervisor.  The applicant's performance was outstanding and in a very short period of time the applicant earned his trust and the respect of senior leaders across the MSCOE community.

	c.  During the past year, the applicant expertly took the lead in the development and drafting of the Chemical, Biological, Radiological, and Nuclear (CBRN) Force Design Update for the entire CBRN Regiment and conducted an in-depth and thorough analysis of the warfighter needs in order to skillfully structure Chemical Corps units to meet the challenges of the future.

	d.  Additionally, the applicant worked diligently to construct the CBRN Brigade/CBRN Command Operational Based Assessment and Capability Based Assessments, establishing the groundwork for significant improvements to the U.S. Army Chemical Corps.

18.  The applicant further provided a copy of a memorandum, dated 19 September 2011, from the Commander, MSCOE.  The official stated:

	a.  He recommended transfer of the reprimand to the restricted portion of the applicant's OMPF in accordance with Army Regulation 600-37 (Unfavorable Information), paragraph 7-2b(1).

	b.  The applicant understood the consequences and adverse effects of his behavior and had expressed his regrets and apologized to all individuals involved.  He made efforts to be a better person and co-worker, volunteering his time during Fort Leonard Wood's Sexual Harassment/Assault Response and Prevention classes to share his experiences and served as an example of how insensitivity towards others could quickly lead to inappropriate and negative verbal behavior in the workplace.

	c.  Since that incident, the applicant had been assigned to MSCOE, where he worked in the Capabilities Development Integration Division.  He feels confident that his efforts in working towards self-improvement have helped him gain the personal trust and confidence of, his subordinates, peers, and superiors across the MSCOE community; therefore, removal of the reprimand/referred OER or transferring unfavorable information to the applicant's restricted portion of his OMPF was in the best interest of the Army.

19.  Army Regulation 623-3 establishes the policies and procedures for the Army's Evaluation Reporting System.

	a.  An OER accepted by Headquarters, Department of the Army (HQDA), and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in an appeal of an OER rests with the applicant.

	b.  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.  Paragraph 1-10 specifies except to comply with the regulation, no person may require changes be made to an individual's OER.  Members of the rating chain, appropriate administrative personnel office, or HQDA will point out obvious inconsistencies or administrative errors to the appropriate rating officials.  The regulation also provides the opportunity to request a Commander's Inquiry or to appeal referred/disputed reports.

	c.  Paragraph 2-19 states that when an officer is officially relieved of duties and a relief-for-cause report is subsequently prepared (paragraph 3-58), relief-for-cause reports require referral to the rated officer.  This referral will be completed before taking any of the actions in the following subparagraphs.

	d.  If the relief is directed by the rater or intermediate rater, the senior rater will do the review provided he or she is a U.S. Army officer.  Otherwise, the first U.S. Army officer in the chain of command or supervision above the individual directing the relief will review the reports.

	e.  The procedures for reviewing relief reports are as follows:

		(1)  If the senior rater is qualified to serve as the reviewer and is satisfied that the report is clear, accurate, complete, and fully in accord with the provisions of the regulation, he or she continues to process the report.

		(2)  If the senior rater (reviewer) finds that the report is unclear, contains errors of fact, or is otherwise in violation of this regulation, he or she will return the report to the rater or intermediate rater, indicating what is wrong.  The senior rater will avoid all statements and actions that may influence or alter an honest evaluation by the rater or intermediate rater.  When the report has been corrected, it will be returned to the senior rater.

		(3)  If the corrected report is satisfactory to the senior rater (reviewer), the senior rater (reviewer) will continue to process the report.

		(4)  If the corrected report is not satisfactory to the senior rater (reviewer), or if the other rating officials disagree concerning the need for changes in the report, the senior rater (reviewer) will indicate objections to the report by adding an enclosure to the OER.

	f.  Paragraph 3-44 states a change-of-rater OER is mandatory when the rated officer ceases to serve under the immediate supervision of the rater and minimum rating qualifications have been met.

	g.  Paragraph 3-47 states a change-of-duty OER is mandatory when the rated officer has a change of principal duty, even though the rater remains the same.

	h.  Paragraph 3-58 states a relief-for-cause OER report is required when an 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 or her performance of duty.  In this regard, duty performance will consist of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards shown in DA Form 67–9, Part IV.  These standards will apply to conduct both on and off duty.

20.  Army Regulation 600-37 prescribes policies regarding unfavorable information considered for inclusion in official personnel files.  Chapter 7 of the regulation states only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer.  Administrative processing and the appeal of officer and enlisted reports are governed by Army Regulation 623-1.

21.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, Military Personnel Records Jacket, Career Management Individual File, and Army Personnel Qualification Record.  It also prescribes the composition of the OMPF.  Paragraph 2-4 states 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 proper authorities listed in the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows in April 2008 the applicant received a reprimand for violating the Army's sexual harassment policy and having inappropriate interpersonal communications with Soldiers of different ranks, to include junior enlisted Soldiers.  The reprimand was imposed as an administrative measure and not as a punishment under Article 15 of the Uniform Code of Military Justice.  The applicant submitted a rebuttal and upon final determination it was directed the reprimand be permanently filed in his OMPF.

2.  On 6 May 2008, the applicant received a relief-for-cause OER for the period covering the reprimand.  He was assessed as "Unsatisfactory Performance, Do Not Promote" and "Do Not Promote, Below Center of Mass, Retain" by his rating official.

3.  The applicant provided documentation showing he received two outstanding OER's in 2009 and 2011 for his duty performance as a Team Operations Advisor and Team Chief since imposition of the reprimand and contested OER.

4.  On 13 October 2011, the DASEB approved the transfer of the reprimand to the restricted portion of the applicant's OMPF in that the intended purpose had been served and it would be in the interest of the Army.

5.  The applicant also provided a statement from BG G____, his former rater who was the rating official on the contested OER, wherein BG G____ stated the applicant's service was superb; however, his lapse in judgment that precipitated the relief action and subsequent OER was based largely on the applicant's admission to using inappropriate and suggestive language with female Soldiers.  Since the incident, the applicant completed counseling, continued to serve exceptionally well in combat operations in Iraq, and graduated from Command and General Staff College on redeployment.  The applicant serves proudly today and his actions continue to reflect his desire, skill, and potential to lead Soldiers of all genders into their Army's future.  He believed the intent of the relief has been met many times over.

6.  The applicant's contentions that the entire OER be removed from his OMPF or changed to a change-of-rater report have been noted.  Notwithstanding the applicant's acceptance of responsibility for his actions and support of his former rater and current command, there is no substantive evidence of record and he has provided none to show the contested report is incorrect, inaccurate, or unjust.

7.  The applicant has not shown this OER contains any serious administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Finally, there are no justifications to remove or transfer an OER after it has been accepted for filing in the OMPF.

8.  It appears the evaluation contained in the contested OER represents the considered opinions and objective judgment of the rating officials at the time of its preparation.  As a result, the contested OER was processed and accepted for filing in his OMPF and there is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity and/or to remove/delete the contested report.

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 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)                                         AR20120002378



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120002378



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1