BOARD DATE:	  6 June 2013

		DOCKET NUMBER:  AR20130007603 


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 following:

* removal of a General Officer Memorandum of Reprimand (GOMOR), dated 17 October 2009
* removal of an Officer Evaluation Report (OER) for the period 7 June 2006 through 25 June 2007
* promotion to lieutenant colonel (LTC) with a date of rank of 1 October 2009
* entitlement to all back pay and allowances as a result of the promotion to LTC
* expunge Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) from his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File 
* retention in the service to qualify for a 20-year retirement 

2.  He states the AR 15-6 investigation as well as the legal review and ensuing GOMOR/OER were erroneous on multiple levels.  He offers that his OER ratings were all above "Center of Mass" from the time he was promoted to captain until this incident.  He argues the following:

* the investigating officer (IO) never asked him about any specific allegations made against him
* he was not given the opportunity to defend himself against the allegations
* the commanding general's (CG) mind was made up by the time he read the IO's investigation
* his proof against some of the allegations was ignored
* the legal review was nasty and spiteful
* the IO failed to conduct a complete investigation

3.  The applicant provides the following:

* Self-authored statement
* Photograph
* Officer Record Brief (ORB)
* Numerous OERs
* DA Forms 1059 (Service School Academic Evaluation Report)
* A list of assignments and duties and responsibilities
* Excerpts from AR 608-1 (Army Community Service)
* AR 15-6 Investigation with applicant's argument concerning findings
* GOMOR with applicant's rebuttal and numerous emailss and statements of support
* Memorandum, Subject:  Recommendation for (Applicant), dated 
22 January 2010
* Computerized Lie Detection Examinations, dated 5 and 10 April 2013
* Army Special Review Board (ASRB) Record of Proceedings, dated 
1 October 2009
* Department of the Army Suitability Evaluation Board (DASEB) Record of Proceedings, dated 30 November 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as a major in the Regular Army at Fort Sill, OK.  He was a battalion executive officer (XO) during the period in question.

2.  On 5 April 2007, an IO was appointed to inquire into allegations of misconduct and mismanagement by the leadership of the 1st Battalion, 1st Air Defense Artillery Regiment, Fort Sill, OK.  Specifically, the IO was appointed to determine whether the battalion leadership:

   a.  improperly authorized the use of government vehicles and Soldiers to transport spouses to Family Readiness Group (FRG) activities and other unofficial functions.
   
   b.  improperly authorized the use of Government vehicles and Soldiers to act as "designated drivers" for unofficial activities.
   
   c.  improperly allowed Soldiers to move personal goods during work hours.
   d.  improperly coerced Soldiers to use personal funds to purchase refreshments and gifts for visiting officials.

   e.  improperly reviewed medical records of Soldiers without proper authorization.
   
   f.  improperly assigned Soldiers to unofficial duties such as handling the personal affairs of the leaders and their spouses or cleaning offices and desks.
   
   g.  improperly allowed Soldiers to store personal goods in official Army spaces.

   h.  improperly used or allowed other Soldiers to use Government supplies, equipment or furniture for personal use.
   
   i.  improperly directed the battalion S-4 to fund a "Battalion Appreciation Dinner" with official funds.

	j.  failed to establish a proper leadership climate as directed by AR 600-20 (Command Policy).

3.  On 8 May 2007, the IO rendered his findings and recommendations.  In reference to the allegations concerning the applicant, he stated the following:

   a.  The finding of the allegation of whether the battalion leadership improperly authorized the use of government vehicles and Soldiers to transport spouses to FRG activities and other unofficial functions was substantiated by written and oral statements.  The IO said that both the commander and the applicant (orally) believed that it was appropriate to offer and provide the spouses with military transportation to and from the FRG meeting.  This decision was made in order to support the battalion's FRG and maximize participation.
   
   b.  The finding of the allegation of whether the battalion leadership improperly authorized the use of government vehicles and Soldiers to act as "designated drivers" for unofficial activities was substantiated by written and oral statements.  The Headquarters and Headquarters Battery Command Section driver in a statement said the applicant coordinated with the battalion commander that he would drive the commander's family to the El Paso airport.  The driver was also instructed that upon arriving to the airport, he was to carry all of the bags to the counter and tag them.

	c.  The finding of the allegation of whether the battalion leadership improperly coerced Soldiers to use personal funds to purchase refreshments and gifts for visiting officials was substantiated by written and oral statements.  Additionally, the IO substantiated that the leadership did not reimburse Soldiers who used personal funds for these and other unofficial purposes.  In a statement from the Command Section secretary, the applicant directed her to purchase coffee, juice, water and donuts for a very important person (VIP) visitor event and she was not given or offered money for the purchase.  She also stated that the applicant always directed her to take care of numerous VIP visits and to set up the conference room with coffee, juice, and donuts with her personal funds.  The battalion S-4 said the applicant told him to compile a list of everyone who was owed money.  He submitted the list to the applicant, but it was subsequently lost.

   d.  The finding of the allegation of whether the battalion leadership improperly directed the battalion S-4 to fund a "Battalion Appreciation Dinner"  with official funds was substantiated by written and oral statements.  However, the direction to do so was dropped by the battalion commander.  In a statement by the Torii Station Garrison Manager, he said the battalion commander and the applicant gave the battalion S-4 guidance to plan and execute a Battalion Appreciation Dinner.  Within the guidance were the specifics to "hide money" and to buy gifts, plaques, and mementos for everyone attending the dinner.

	e.  The finding of the allegation of whether the battalion leadership failed to establish a proper leadership climate as directed by AR 600-20 was substantiated by written and oral statements.  The IO said the applicant was seen as the "Enforcer" or "Yes Man" of the battalion commander.  His focus was on "getting things done - at any cost" and "whatever the battalion commander wants, he gets."  His method of communication could be very boisterous and extremely negative.  However, most of the staff and battery commanders valued his guidance and it was perceived that he had a genuine concern for Soldiers.

	f.  The IO recommended the applicant be issued a GOMOR for misconduct based on the specific findings contained in the investigation and an early release outside of the battalion.  He further recommended the applicant repay all debts owed to the Soldiers immediately.

4.  On 13 May 2007, a legal review was conducted on the AR 15-6 investigation. The Judge Advocate (JA) in reference to the applicant, found the following:

   a.  The applicant admitted that he permitted the use of government vehicles and Soldiers for the transport of spouses to and from the FRG meeting.

   b.  He arranged to have a Soldier drive the battalion commander's spouse and her family to the airport and once there instructed the Soldier to bring in all the bags and tag them for the flight.  The evidence revealed the applicant's general attitude towards doing things that the battalion commander wanted was "what the battalion commander wants, battalion commander gets."  This attitude contributed to the pervasive misuse of the government vehicles and Soldiers for the battalion commander's personal use.  He denied his role in these actions.

   c.  He had on many occasions told subordinates to purchase gifts and refreshments for visiting distinguished visitors with their own funds.  In many cases, there was no offer for reimbursement.  The applicant states he told the Soldiers to provide receipts and they would be reimbursed.  This statement was contrary to the multiple complainants. 
   
   d.  The applicant encouraged the S-4 to use creative financing to use Operation and Maintenance Account (OMA) funds to pay for things that OMA was not allowed to pay to support the battalion commander's orders.  He encouraged the illegal acts, instead of telling the commander it was inappropriate to tell the S-4 to follow the illegal order.  
   
   e.  The applicant was a consummate "yes" man to the battalion commander. Instead of protecting his Soldiers and staff, he participated in and encouraged illegal and immoral actions of the battalion commander.  He failed to establish a proper leadership climate as described in AR 600-20.
   
   f.  After being notified of the investigation and being told to take no action to interfere with the investigation, on or about 11 April 2007, the applicant called all the company commanders to a meeting.  In the meeting he told the commanders that an investigation was about to begin into the commander.  He told them he knew they were going to say what they were going to say, but not to say anything that would get the commander fired.  Further, he instructed them to not tell anyone about their meeting to include the first sergeants.  He also told them to sit down with their lieutenants and tell them not to say anything to get the boss fired, and get them on board not to say anything about the instructions.    
   
	g.  There were several reports by commanders that their decisions regarding the Uniform Code of Military Justice (UCMJ) were being influenced by the battalion commander and the applicant.  The applicant was prone to saying "I am not a commander so I cannot be guilty of unlawful command influence" followed by him stating what he wanted for the action in the case to be.  Both the battalion commander and the applicant used intimidation and fear or retribution to influence the battery and company commanders' decisions on UCMJ actions.  These actions constitute unlawful command influence.

	h.  On 13 May 2007, the JA officer disagreed with the IO's recommendation that the applicant receive a GOMOR and permanent change of station from the battalion.  She recommended he be relieved and given a relief for cause OER.  She further recommended the AR 15-6 investigation be forwarded to the Commander, 10th Area Support Group, for action he deemed appropriate.

5.  On 29 May 2007, the applicant was suspended from his duties as the battalion XO and given a GOMOR.  He acknowledged receipt of the suspension and he was provided supporting documents.  He was reprimanded for:

* failing to establish a proper leadership climate under AR 600-20
* authorizing the use of government vehicles and Soldier drivers for other than proper military purpose
* coercing subordinate Soldiers to use personal funds to purchase refreshment and gifts for visitors
* soliciting another to commit an offense
* unlawfully influencing commanders with the battalion
* obstructing justice
* disobeying the CG’s direct order

6.  On 23 June 2007, he submitted a rebuttal to the GOMOR and the proposed relief from his duties as the battalion XO.  He also submitted numerous character statements and emails from fellow Soldiers.  In his rebuttal he apologized for the unauthorized use of Government vehicles and Soldiers.  He offered that he authorized the use of military resources to eliminate the prospect of anyone drinking and driving.  Unfortunately, he stated that his singular focus on ensuring safety of the spouses prevented him from appreciating the fact that use of battalion assets for the FRG violated regulation.  He added he did not receive any personal gain from complying with the battalion commander's directive to order a Soldier to drive his family to the airport.  He said he apologized to the driver for not having a better understanding of the Army regulation and for any humiliation it caused.

   a.  He denied the allegations of misappropriating unit funds and coercing subordinates to use personal funds.  He added that he, the battalion commander, and the command sergeant major (CSM) routinely paid for items out of their pocket as well.  He offered he was unaware of any official way to pay for such items.  He stated that he paid for plaques out of his pocket as documented by a $200.00 cancelled check, reimbursed two officers $120.00 out of his pocket for Army mugs as gifts, $35.00 to another officer for coffee and donuts, and he also reimbursed another officer for a case of bottled water.  
   
   b.  He offered that he gave the CSM a list of Soldiers who needed to be reimbursed in January and the list was recompiled and submitted again in early March.  He added all of the purchases on the list occurred prior to his arrival.  He acknowledged it was inappropriate for him to permit a command climate that made personnel feel compelled or forced to spend their own money to provide refreshments or gifts for distinguished visitors and for negligently failing to follow-up and ensure Soldiers were repaid.  

	c.  In regard to soliciting another to commit an offense, he argued that he never specifically stated or gave the order to illegally use battalion funds for the Appreciation Dinner nor did he intend to imply that the S-4 should do so.  He said he never advised the S-4 or anyone to illegally use battalion funds.  He merely sought to obtain additional support to discount the dinner tickets for the Soldiers, and the shortfall was personally covered by the battalion's chain of command.

	d.  The applicant stated it was never his intent to influence the battery or company commanders' ability to independently make their own decision regarding UCMJ actions.  His purpose in speaking with several of the commanders was to mentor them and to give them a larger and different perspective.  He added he did not comprehend that his actions were being perceived as a form of intimidation or retribution.

	e.  He stated he recognized that the meeting he called with the battery commanders should not have been conducted and regretted his actions.  His intent was to inform them that an investigation was forthcoming and to keep the information about the investigation closehold for now.  He maintained that he was never instructed not to speak about the AR 15-6 investigation.

7.  On 25 June 2007, after reviewing the GOMOR and the applicant's rebuttal statement, after a language change from "drove spouses to their homes" to "returned spouses to Kadena Air Base," the imposing authority directed the GOMOR be filed in the applicant's AMHRR.

8.  The applicant's record shows he received a relief for cause OER while serving in the rank of MAJ for the period 7 June 2006 through 25 June 2007 as the Battalion XO, Headquarters, 1-1 Air Defense Artillery, U.S. Army Pacific.  He was rated and senior rated by the CG, 94th Army Air and Missile Defense Command (AAMDC), Fort Shafter, HI.  The rater's/senior rater's and the applicant's signatures are dated 25 June 2007 and 26 June 2007, respectively.  "This is a referred report, do you wish to comment?" is checked Yes.

9.  In his rebuttal to the OER, dated 3 July 2007, he reiterated the same information stated in his rebuttal to the GOMOR (paragraph 6 this Record of Proceedings).  Additionally, he stated that he was trying to obtain a polygraph to prove his innocence, but it was not conducted at the time of this memorandum.

10.  On an unknown date the CG, Fort Shafter, HI, conducted a supplementary review of the applicant's contested OER.  He determined the report was complete and correct as written and required no further comment from him.

11.  On 4 September 2008, he appealed to the ASRB to have the OER removed from his AMHRR.  The request to remove the OER was denied on 1 October 2009 citing that he and his counsel failed to provide clear and convincing evidence to show the OER contains a material error, inaccuracy, or injustice. 

12.  On 30 August 2010, he appealed to the DASEB to have the GOMOR removed from his AMHRR.  The request to remove the GOMOR was denied on 30 November 2010 citing that he failed to provide evidence to show the GOMOR was untrue or unjust or any new evidence for the board to consider that substantially negates the proceedings of the AR 15-6 investigation and its subsequent administrative action.

13.  On 5 and 10 April 2013, the applicant was administered a polygraph test that consisted of 5 questions for each test.  The examiner/analyst opined that there was "no deception indicated" on any of the questions asked.  The applicant was asked and answered the following questions:

* Did you know it was against regulation for the "driver" to drive "the battalion commander's spouse" to the airport?  No
* Did you ever improperly use assigned Soldiers to unofficial duties such as handling your personal affairs?  No
* Did you reimburse the (driver) for the coffee and donuts he purchased when (BG S.) visited?  Yes
* Did you tell the unit commanders "not to get the boss fired"?  No
* Did (BG S.) ever tell you not to interfere with the investigation?  No
* During the meeting with the battery commanders to inform them of the upcoming investigation, did you tell them not to tell anyone else the meeting took place especially their first sergeants and that they needed to get their lieutenants on board and swear them to secrecy?"  No
* Did you interfere with the battery and company commanders' ability to independently make their own decisions regarding UCMJ action, attempting to influence their decision through fear or retribution and intimidation?  No
* Did you ever instruct anyone to use or authorize the use of battalion funds for illegal activities?  No
* Did the Torii station chaplain come by the battalion and say that "there is an investigation coming and for you not to get involved because you are one of the good guys"?  Yes
* Did you request funds to support distinguished visitors from the 94th AAMDC . . . because the battalion had no way of paying for these visits?  Yes 

14.  The applicant provided numerous emails from 7 December 2006 through
25 June 2007 that he either sent or received from various individuals on various subjects.  These subjects included but were not limited to his concerns with problems within the command, weapons status, officer car wash, Article 15 status, staff huddle, Spirit Funds/T-shirts, physical training, and etc.  Additionally, the emails contain several letters of support from Soldiers expressing their thanks to the applicant for his encouragement, devotion to duty, and his willingness to go the extra mile.

15.  In a memorandum, Subject:  Recommendation for (Applicant), dated
22 January 2010, the author recommended that the applicant be promoted and retained in the Army.  He said he was the senior Army commander on Okinawa, Japan and as such, he observed the applicant and his battalion for two years.  He opined the applicant was clearly among the best and most talented leaders on Okinawa.  He concluded the applicant was ready to move to the next higher grade.

16.  AR 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  

   a.  The regulation does not require that an investigation be conducted before adverse administrative action, such as relief for cause, can be taken against an individual.  However, if an investigation is conducted using the procedures of the regulation, the information obtained, including findings and recommendations, may be used in any administrative action against an individual, whether or not that individual was designated a respondent, and whether formal or informal procedures were used.
   
	b.  Paragraph 1-9c states, except as provided in paragraph 1-9d, when adverse administrative action is contemplated against an individual including an individual designated as a respondent, based upon information obtained as a result of an investigation or board conducted pursuant to this regulation, the appropriate military authority must observe the following minimum safeguards before taking final action against the individual:

		(1)  Notify the person in writing of the proposed adverse action and provide a copy, if not previously provided, of that part of the findings and recommendations of the investigation or board and the supporting evidence on which the proposed adverse action is based.
		(2)  Give the person a reasonable opportunity to reply in writing and to submit relevant rebuttal material.

		(3)  Review and evaluate the person's response.

17.  AR 623-3 (Officer Evaluation Reporting System) set forth policies and procedures for the Officer Evaluating Reporting System.

   a.  Paragraphs 3-39 and 6-7 provide that an OER accepted by Headquarters Department of the Army (HQDA) and included in the official record of an officer is presumed to be administratively correct, 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.  Any appeal will be supported by substantiated evidence. An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered.

	b.  Paragraph 3-54 states that an OER report 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 their performance of duty.  Action to relieve an officer from any command position will not be taken until after obtaining written approval from the first general officer in the chain of command of the officer being relieved.

   c.  Paragraph 6-11 states 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.  The evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  For a substantive claim of inaccuracy or injustice, evidence will include statements from third parties.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials [emphasis added].

	d.  Paragraph 6-4 provides that alleged errors, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's attention by the rated individual or anyone authorized access to the report.  The primary purpose of a Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.

18.  AR 600-37 (Unfavorable Information) provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. 

19.  The unfavorable information is of such a serious nature as to apparently warrant, unless adequately explained or rebutted, filing in a recipient's AMHRR.  In such cases, a notification letter will be sent to the recipient, in which his or her rights are explained.  The letter will include the unfavorable information proposed for filing in the AMHRR.  The recipient must be given a chance to review the evidence against him or her and to submit a written rebuttal or explanation for the board's consideration before any adverse finding or recommendation is made.

20.  AR 600-8-104 (AMHRR Management) governs the composition of the AMHRR and states that the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board.

21.  AR 600-20 prescribes the policies and responsibilities of command.  The regulation states that commanders and other leaders committed to the professional Army ethic promote a positive environment.  If leaders show loyalty to their Soldiers, the Army, and the nation, they earn the loyalty of their Soldiers. If leaders consider their Soldiers' needs and care for their well-being, and if they demonstrate genuine concern, these leaders build a positive command climate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant maintains, in effect, that the AR 15-6 investigation was "flawed." He argues that the IO never asked him about any specific allegations made against him and he was not given the opportunity to defend himself against the allegations.

2.  By the applicant's own admission in his rebuttal to the GOMOR, he apologized for the unauthorized use of Government vehicles and Soldiers.  He offered that he authorized the use of military resources to eliminate the prospect of anyone drinking and driving.  He further stated his singular focus on ensuring safety of the spouses prevented him from appreciating the fact that use of battalion assets for the FRG violated regulation.  Therefore, the IO findings that the applicant improperly authorized the use of government vehicles and Soldiers to transport spouses to FRG activities and other unofficial functions were substantiated.

3.  The applicant also stated he did not receive any personal gain from complying with the battalion commander's directive to order a Soldier to drive his family to the airport.  He personally apologized to the driver for not having a better understanding of the Army regulation and for any humiliation it caused.  His admission substantiates the allegation that he improperly authorized the use of government vehicles and Soldiers to act as "designated drivers" for unofficial activities.  Ignorance of regulatory guidance is not an excuse for what should have been a common-sense appreciation of the situation.

4.  The allegation that the battalion leadership improperly coerced Soldiers to use personal funds to purchase refreshments was substantiated.  The IO determined the applicant had directed the command section secretary to purchase refreshments for VIP events and she was not given money or offered money for the purchase.  The applicant denied this allegation, but offered that a list of Soldiers who needed to be reimbursed was compiled and submitted on two separate occasions.  He  acknowledged it was inappropriate for him to permit a command climate that made personnel feel compelled or forced to spend their own money to provide refreshments or gifts for distinguished visitors and for negligently failing to follow-up and ensure Soldiers were repaid.  Given the fact that the applicant stated he submitted a list for the Soldiers to be reimbursed is an indication that he was aware of the situation.  It is highly unlikely that these Soldiers would voluntarily commit to using their personal funds to sponsor VIP events.  Therefore, the applicant's argument is not supported by the evidence provided.

5.  Although the applicant argues he never "specifically" stated or gave the order to illegally use battalion funds for the Appreciation Dinner, the IO found otherwise.  The Torii Station Garrison Manager said the battalion commander and applicant gave the battalion S-4 guidance to plan and execute a Battalion Appreciation Dinner with the specifics to "hide money" and to buy gifts, plaques, and mementos for everyone attending.  Therefore, his argument is not supported by the evidence provided. 

6.  The evidence shows and the applicant admitted he improperly authorized the use of Government vehicles and Soldiers and permitted a command climate that made personnel feel compelled or forced to spend their own money to provide refreshments or gifts for distinguished visitors.  This in itself supports the allegation that he failed to establish a proper leadership climate as directed by AR 600-20. 

7.  The applicant also states that the CG's mind was made up by the time he read the IO's investigation and his proof against some of the allegations was ignored.  Evidence of record shows that on 8 May 2007, the IO rendered his findings and recommendations of the AR 15-6 investigation.  On 29 May 2007, the applicant was suspended from his duties as battalion XO and given a GOMOR.  On 23 June 2007, he submitted a rebuttal to the GOMOR and the proposed relief from his duties.  In his rebuttal he discounted the AR 15-6 information and provided numerous character statements and emails. 

8.  There is no evidence and the appellant has not provided any to show that he was not afforded due process during the entire AR 15-6 investigation and subsequent to the rendering of the GOMOR and the contested OER.  The evidence shows that the 15-6 investigation was completed, reviewed by legal, and forwarded to the applicant.  The CG approved the relief and issued a GOMOR after reviewing the 15-6.  After reviewing the applicant's evidence, he directed that the GOMOR be filed in the applicant's AMHRR. 

9.  The applicant was given a relief for cause OER and again he was afforded due process.  He stated his same argument as contained in his rebuttal to the GOMOR.  On an unknown date the CG, Fort Shafter, HI, conducted a supplementary review of the applicant's contested OER.  He determined the report was complete and correct as written and required no further comment from him.

10.  In his defense, the applicant submits two polygraphs in which he was asked 10 questions.  However, the questions asked do not appear to be the basis for the substantiated findings of the AR 15-6 investigation, and as such, does not provide any evidence sufficiently compelling to conclude that an error or injustice occurred.

11.  After a comprehensive review of the evidence presented, the applicant's contentions and arguments, and the voluminous evidence submitted in support of his application, do not show by clear and convincing evidence that he was not afforded his due process during the AR 15-6 investigation or that the findings were in error or unjust.  As such, all adverse administrative actions that resulted from the AR 15-6 are considered a natural result of his own actions and are appropriate.  

12.  In view of the foregoing, there is an insufficient evidentiary basis for expunging the AR 15-6.  Likewise, there is no basis for removing the GOMOR or OER and consideration for promotion to LTC with entitlement to all back pay and allowances.

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)                                         AR20130007603



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ABCMR Record of Proceedings (cont)                                         AR20130007603



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