IN THE CASE OF:	  

		BOARD DATE:  23 August 2012

		DOCKET NUMBER:  AR20120002398 


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 a promotion to colonel.

2.  The applicant states:

* he is requesting his rank be adjusted from lieutenant colonel to colonel due to an unfair removal from command that resulted in him not being selected by the colonel board
* his commander knew of issues in his command but failed to inform him of any of them
* he was never counseled or given the chance to correct the issues, resulting in his removal from command
* after giving him a top block rating and stating he was one of his top performing Product Managers (PM), 5 months later his commander began the process to remove him from command without supporting evidence
* the investigation was unfair and one-sided
* the evidence was not supported and incomplete
* there was a conspiracy between the investigating officers, staff, and his supervisor
* he was removed and never received a relief-for-cause Officer Evaluation Report (OER)

3.  The applicant provides numerous enclosures in two binders as outlined in his Table of Contents listing.


CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a second lieutenant in the U.S. Army Reserve (USAR) on 25 May 1988 and he entered active duty on 4 January 1989.  On
29 January 2000, he was released from active duty.  On 30 January 2000, he entered active duty in an Active Guard Reserve (AGR) status.

2.  On 31 May 2002, the applicant was appointed to the Army Acquisition Corps (AC).  His record shows he received extensive training in program management and Federal Acquisition Regulation (FAR) requirements.

3.  On 30 December 2005, he was promoted to lieutenant colonel.

4.  On 6 March 2008, he was assigned as the PM, Distributed Learning Systems (DLS), Office of the Program Executive Officer, Enterprise Information Systems, at Fort Belvoir, VA.

5.  Records show complaints against the applicant were made by staff members.  These individuals indicated PM staff members were often subjected to aggressive behavior creating a hostile work environment and that the applicant did not personally adhere to the standing operating procedures for Personnel Management.

6.  During the period 22-30 September 2009, a Commander's Inquiry was conducted and the inquiry indicated the command climate was less than optimal in the applicant's organization.

7.  On 10 November 2009, an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was initiated due to allegations made by certain employees against the applicant.  The scope of the investigation was:

	a.  whether the applicant misused government resources in violation of the Joint Ethics Regulation as alleged in the report of Commander's Inquiry.

	b.  whether he committed travel fraud by submitting fraudulent travel vouchers as alleged in the Commander's Inquiry.

	c.  whether he violated Army Regulation 25-2 (Information Assurance), concerning access to electronic communications of a subordinate.



8.  On 12 November 2009, the applicant was counseled for failing to maintain an appropriate command climate.

9.  He was suspended from his duties effective 12 November 2009 pending completion of the Army Regulation 15-6 investigation.

10.  On 21 January 2010, the Army Regulation 15-6 investigating officer completed his investigation and found the applicant:

	a.  misused government resources in violation of the Standards of Ethical Conduct for Employees of the Executive Branch.

	b.  directed contractor employees to use a government printer to produce at least 50 color copies of a fast food internet coupon for his personal use.

	c.  directed a contractor to perform various duties as his administrative assistant, inconsistent with her position as an L3 marketing analyst.

	d.  directed a government employee to make travel arrangements for his wife to accompany him on a temporary duty trip.

	e.  directed the production of approximately 50-100 church flyers using contractor personnel and government equipment.

	f.  tasked a contractor employee to review résumés and create a list of personnel being considered for a government job as the deputy for the Enterprise Management Center.

	g.  exercised improper command and control of contractor personnel by engaging in direct conversations with the L3 PM, in which he requested raises and decreases in the labor rates of specific contractor personnel.

	h.  his time management habits created a widespread perception among his subordinates that he routinely performed less than a full duty day.

	i.  deliberately, and without proper authority, accessed the electronic communications of a subordinate.  Specifically, he directed a system administrator to log into a subordinate's government email account on or about 


9 November 2009 under circumstances that demonstrated poor judgment and leadership.  

11.  The investigating officer concluded that one government employee made the following observation about the applicant:  "…he often states that he doesn't care what the regulation says, "I am the PM and I will do what I want."  

12.  The investigating officer recommended the applicant receive face-to-face remedial ethics and acquisition ethics training.  He also stated although he does not make any specific recommendation with regard to adverse action against the applicant, he believes the totality of the evidence developed in this investigation raised serious questions as to the applicant's potential to execute his leadership and management responsibilities without close supervision.

13.  On 25 March 2010, he was relieved for cause from his duties as the PM DLS due to the misconduct substantiated by the Army Regulation 15-6 investigation.  He was informed a relief-for-cause OER would be generated.

14.  He provided two copies/drafts of a relief for cause OER covering the period
7 March 2009 through 6 March 2010 and 29 January 2010 through 25 March 2010.  However, a review of the performance section of his OMPF on the interactive Personnel Electronic Records Management System (iPERMS) does not contain a relief-for-cause OER.

15.  The performance section of his OMPF contains a senior rater option OER covering the period 6 March 2009 through 28 January 2010.  He was rated "Outstanding Performance, Must Promote" in Part V (Performance and Potential Evaluation) by his rater with a bullet comment "I am serving as both rater and senior rate in accordance with Army Regulation 623-3, para 2-21."  He was rated "Best Qualified" in Part VIIa (Evaluate the rated officer's promotion potential to the next higher grade) by the senior rater.

16.  According to the applicant, following his removal from command, he was non-selected for promotion to colonel.

17.  Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-54, states a relief-for-cause OER is required when an officer is relieved for cause regardless of the rating period involved.



18.  Title 10, U.S. Code, section 618(f) states that, except as authorized or required by this section, proceedings of a selection board convened may not be disclosed to any person not a member of the board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was never counseled or given an opportunity to correct the issues.  He was highly educated in program management and was an experienced senior officer.  He knew or should have known better.  That he was not specifically counseled to correct his behavior/management style prior to his relief is not persuasive.

2.  His contentions the Army Regulation 15-6 investigation was unfair and one-sided; the evidence was not supported and incomplete; and there was a conspiracy between the investigating officers, staff, and his supervisor was noted.  However, there is no evidence and he provided none to support these contentions.

3.  The evidence of record supports his contention he was removed from command and he never received a relief-for-cause OER.  In accordance with the governing regulation, he should have received a relief-for-cause OER because he was relieved for cause from his duties as the PM, DLS.  His receipt of a senior rater option OER constituted a lesser degree of damage than a relief-for-cause OER.

4.  Although it appears an administrative error was made when he received a senior rater option versus a relief-for-cause OER, it has long been an unwritten policy of the Board that an applicant will not be made worse off than when they applied to the Board.  For this reason, the Board will not take any action to effect the administrative change to correct the reason for the submission of his OER for the period 6 March 2009 through 28 January 2010.

5.  He contends he was unfairly removed from command which resulted in him not being selected for promotion to colonel.  However, the reasons for his non-selection are not known; by law, promotion boards may not divulge that information.  Therefore, there is an insufficient evidentiary basis for granting the applicant'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)                                         AR20120002398



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ABCMR Record of Proceedings (cont)                                         AR20120002398



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