IN THE CASE OF:	  

		BOARD DATE:  17 January 2013

		DOCKET NUMBER:  AR20120016831 


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 the removal of a relief for cause officer evaluation report (OER) and a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) from his Official Military Personnel File (OMPF), currently referred to as the Army Military Human Resource Record (AMHRR).

2.  The applicant states, in effect, that as an Army chaplain the OER diminishes his role as a chaplain and his career.  He goes on to state that at the time of the incident he had just returned from Iraq and had a moral fall and confessed aberrant behavior.  He also states that the commanding general (CG) recognized the mitigating psychological and behavioral health issues and placed the record of nonjudicial punishment (NJP) in the restricted section of his official records.  However, his rating officials did not recognize the medical issues that affected his performance when they rendered the relief for cause OER. 

3.  The applicant provides a three-page unsigned statement explaining his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the removal of a relief for cause OER and a DA Form 2627 from the applicant’s AMHRR.

2.  Counsel states, in effect, that the applicant was relieved as the battalion chaplain as a result of an arrest by the Fayetteville Police Department and it was later learned that the applicant had been suffering from depression for nearly      3 years.  He goes on to state that a single incident of aberrant behavior made at a time of severe mental stress should not tarnish the career of a competent, trustworthy, and honorable officer.  He also states that the civilian charges were dismissed due to insufficient evidence. 

3.  Counsel provides a four-page brief of his case and a table of contents of enclosures (Tab 5).

CONSIDERATION OF EVIDENCE:

1.  The applicant served on active duty in the U.S. Navy from 7 August 1980 to   5 October 1984 and in the Naval Reserve until he was honorably discharged on 17 July 1986.

2.  He was appointed as a U.S. Army Reserve (USAR) chaplain in the rank of first lieutenant (1LT) on 2 September 1997 and on 9 January 1999 he was promoted to the rank of captain (CPT) and was ordered to active duty as a Regular Army chaplain.  He was initially assigned to Fort Benning, Georgia and in August 2001 he was transferred to Fort Bragg, North Carolina.  

3.  On 30 November 2001, a mental health evaluation was conducted on the applicant after being referred by his commander because of difficulties with his work and depressive symptoms.  He was diagnosed with an adjustment disorder with depressed mood.

4.  His records show that he deployed to Iraq during the period 20030411 – 20040328.

5.  On 10 August 2004 while assigned as the battalion chaplain of a military police battalion, the applicant, who was married with four children, was arrested by the Fayetteville Police Department for soliciting and engaging in sex with a prostitute.

6.  The applicant was also seen by a licensed professional counselor on 28 July, 19 August, and 2 September 2004 and was diagnosed with a Major Depressive Disorder, single episode.

7.  On 15 November 2004, the applicant received a relief for cause OER covering the period 20040401 – 20040824.  In Part IV, his rater gave him “NO” ratings under the Army Values of “Honor and Duty.”  He also gave him “NO” ratings under “Conceptual Skills and Decision Making.”

8.  In Part V, under Performance and Potential Evaluation, his rater gave him an “Unsatisfactory Performance” rating and indicated that the applicant had been relieved of duties and reassigned by the battalion commander based on his arrest for soliciting and engaging in sexual intercourse with a prostitute.  He also indicated that prior to the arrest the applicant’s performance was average.

9.  In Part VII, the applicant’s senior rater and battalion commander gave the applicant a “Do Not Promote” rating and placed him below center of mass – Do not promote rating for potential.  He stated in his remarks that the applicant had not lived up to established Army Values, that he had disgraced his family, his unit, and the military.  Based on the applicant’s admission to the offenses, the battalion commander directed the applicant be relieved and reassigned.  He deemed the applicant’s potential for continued service as limited. 

10.  On 22 November 2004, NJP was imposed against the applicant by the CG (a lieutenant general) for wrongfully soliciting and engaging in sex with a prostitute, a woman not his wife.  His punishment consisted of a written reprimand from the CG and the CG directed that the record of NJP (DA Form 2627) and the reprimand be placed in the restricted section of his official records.  The applicant did not appeal the punishment. 

11.  There is no evidence in the available records to show that the applicant appealed the contested OER to the Officer Special Review Board within that board’s statute of limitations.  

12.  The applicant’s records show that he again deployed to Iraq, during the period 20061006 – 20070814.

13.  On 1 January 2008, he was honorably discharged under the provisions of Army Regulation 600-8-24, paragraph 2-41, due to non-selection for permanent promotion.

14.  Although not explained in the available records, the applicant was ordered to active duty as a USAR CPT on 7 December 2009.  He was promoted to the rank of major on 18 February 2011 and he was issued his 20-Year letter on 6 October 2011.  He was honorably released from active duty (REFRAD) on 6 December 2011 due to completion of required service.

15.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures and serves as the authority for the preparation of the OER.  It provides that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer is presumed to be administratively correct and to have been prepared by the properly designated rating officials at the time of preparation.  Each report must stand alone.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

16.  Army Regulation 623-3 also provides that the burden of proof in an appeal of an OER rests with the applicant.  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.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

17.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, of the UCMJ.  Paragraph 3-16d(4) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  

18.  Army Regulation 27-10, in effect at the time, states the decision to file DA Forms 2627 on the performance or restricted section of the OMPF (currently the AMHRR) would be determined by the imposing commander at the time punishment was imposed.  The filing decision of the imposing commander is final and was to be indicated in item 5, DA Form 2627.   

19.  Paragraph 3-37 of Army Regulation 27-10 provides the filing determination for the DA Form 2627 and associated documents.  It provides, in part, that the restricted section of the AMHRR is that portion of the record that contains information not normally viewed by career managers or selection boards.    

DISCUSSION AND CONCLUSIONS:

1.  The applicant was relieved for cause for soliciting and engaging in sex with a prostitute, conduct unbecoming an officer and a chaplain, and conduct he admits was inappropriate.  

2.  Although the applicant contends that he should not have been relieved and given a negative OER because he was experiencing mental depression and the relief for cause report was too harsh for one mistake or error in judgment, it appears that the relieving official and his rating chain did not view the incident as lightly as he did. 
3.  Accordingly, after considering the available facts and circumstances involved at the time, the chain of command decided that he should be relieved of his duties. 

4.  While the applicant does not agree with the decision of his chain of command, he has failed to show through convincing evidence that the contested report does not reflect the objective evaluation of his rating chain at the time and that it does not properly reflect the rating chain’s evaluation of his performance and potential during the period in question.

5.  Accordingly, the contested report appears to represent a fair, objective, and valid appraisal of his performance and potential during the period in question.  In view of the foregoing, there is no basis for granting the applicant's request to remove the contested report from his records.

6.  It appears that the NJP was imposed in compliance with applicable laws, regulations, and policies by a commander empowered to do so.  It also appears that the punishment was not disproportionate to the offenses for which he was charged and found guilty and that the NJP and the written reprimand was properly filed in the restricted section of his AMHRR, as directed by the imposing commander at the time punishment was imposed.

7.  Accordingly, there appears to be no basis to grant the applicant’s request to remove the record of NJP from his records as well.  
  
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)                                         AR20120016831





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ABCMR Record of Proceedings (cont)                                         AR20120016831



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