IN THE CASE OF:	  

		BOARD DATE:	  18 March 2014

		DOCKET NUMBER:  AR20130013745 


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 reconsideration of his earlier request for removal from his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File:

* General Officer Memorandum of Reprimand (GOMOR), dated 7 August 2001
* DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period 23 December 2000 through 7 May 2001 (hereafter referred to as the contested OER)

2.  The applicant states the claims and assertions are inaccurate. 

3.  The applicant defers the submission evidence to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* The Relief for Cause (RFC) OER be expunged from the applicant's records
* The GOMOR be removed from his records
* The applicant be promoted to colonel (COL)
* In the alternative, the applicant's records be submitted before a special selection board (SSB)
* The applicant be declared eligible to return to active service
2.  Counsel states:

* The applicant did not at any time refuse a lawful order from his immediate supervisor and his supervisor did not welcome contrary views or feedback
* No commander's inquiry was made despite the applicant's request for one
* The applicant continued his honorable service subsequent to the GOMOR and relief and epitomized the professional Soldier 

3.  Counsel provides:

* Applicant's affidavit, previously submitted
* Army Board for Correction of Military Records (ABCMR) Docket Number AR20110025116, dated 26 July 2012
* Email exchange, previously submitted
* Memorandum for Record, previously submitted
* Request for Commander's Inquiry, previously submitted
* Extract of Army Regulation 623-105 (Personnel Evaluations), previously submitted
* Statement from a command sergeant major (CSM), previously submitted
* Letters of support, previously submitted
* OERs from 28 May 2000 to 31 January 2011, previously considered
* Previous ABCMR submission with supporting documents
* Statement from General S--n Mc-------l (Retired), dated 17 October 2012
* Statement from COL E---n W. A------n (Retired), dated 26 January 2013

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110025116, dated 26 July 2012.

2.  The applicant provides a new argument through his counsel as well as two new statements from senior officers.  The new argument and statements constitute new evidence and as such warrants consideration by the Board. 

3.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 22 February 1985.  

4.   He entered active duty on 22 February 1985.  He later executed an oath of office as a Regular Army officer on 29 August 1990.  He served in a variety of stateside or overseas assignments and he was promoted to major on 1 August 1996.
5.  During the period in question, he was assigned as a company commander, F Company, 1st Battalion, 1st Special Warfare Training Group (Airborne), U.S. Army John F. Kennedy Special Warfare Center and School (USAJFKSWCS), Fort Bragg, NC.  

6.  On 7 May 2011, the Commanding General (CG) USAJFKSWCS, ordered the applicant's relief from command of Company F, 1st Battalion, 1st Special Warfare Training Group (Airborne). 

7.  On 11 May 2001, he was reprimanded by his battalion commander for failure to follow orders and insubordination.  The reprimand stated this was his second such offense.  His misconduct reflected a complete lack of respect, loyalty, duty, and support for the chain of command and is inconsistent with his oath of office.  It also stated his battalion commander had lost complete trust and confidence in his ability to continue in command.  The reprimand added: 

	a.  On approximately 15 April 2001, the battalion commander directed him to formulate a contingency instructor training program for Phase II and IV of the Special Forces Qualification Course.  He explained that a contingency plan was necessary to ensure their ability to handle increasing class load.  He further stated that the current instructor shadow program would remain in effect but could no longer serve as a reason for limiting class size.

	b.  On approximately 21 April 2001, the applicant presented his battalion commander with a briefing that basically outlined the current training program, advocating that it represented the only effective means of training instructors.  The battalion commander agreed that the shadow program represented the most effective training model, but again indicated that a contingency plan was absolutely necessary.  He further agreed that the absence of a shadow program had the potential to jeopardize safety and quality.  However, he pointed out that it is their job as leaders to find tough solutions to difficult problems and mitigate risks.  He again directed him to develop an alternative training program.  The applicant reluctantly agreed to develop such a plan.

	c.  On 3 May 2001, he again presented his battalion commander with another plan that relied on the shadow training program.  The battalion commander informed him that the plan failed to meet his guidance and directed him, for the third time, to develop a contingency course of action.  He immediately objected to his order in a belligerent and insubordinate tone.  The battalion commander warned him that the decision had been made and to execute the order.  In the presence of fellow field grade officers and sergeants major, the applicant stood up, slammed his chair into the conference room table and assumed a threatening pose.  He continued to raise his voice in a belligerent and insubordinate manner while lecturing the battalion commander about compromising training standards and quality.  Once again, the battalion commander informed him that the decision had been made and warned him to watch his tone.  He escalated his attack at which point the battalion commander again advised him to watch his tone or risk immediate relief.  

	d.  His misconduct on 3 May 2001 is particularly troubling on its own merit. Even more disturbing, is his decision to exhibit such unprofessional conduct in the presence of fellow officers and senior NCOs.  One would expect to see this type of behavior in an adolescent but not from a professional military officer. Further, he was previously counseled regarding his failure to follow orders and insubordinate disposition; in fact, he received a reprimand for the same misconduct on 27 October 2000.  In that reprimand, the battalion commander specifically warned him that he had serious reservations regarding his ability to continue in command and that further misconduct would result in a recommendation for his relief.

	e.  On 4 May 2001, the battalion commander counseled him concerning his continued misconduct.  He also outlined the seriousness of such actions and how they were contrary to his oath of office as well as good order and discipline.  He further indicated his intent to contemplate the consequences over the weekend before making a final decision concerning his disposition.  He stated that the applicant could be suspended from his duties and recommended for relief.  The battalion commander also explained that, while the applicant had an obligation to provide candid input and was entitled to his opinion, once a decision is made he had a duty to fully support the chain of command, display a positive attitude, and execute the order as though it was his own idea.  At that point the applicant indicated that he could not support such a policy and said "just suspend me now."  The battalion commander suspended him from command and notified the Commander, 1st Special Warfare Training Group (Airborne).  He notified the CG, USAJFKSWCS, who subsequently approved the applicant's relief.

	f.  This reprimand is imposed as an administrative measure and not as punishment under the Uniform Code of Military Justice.  It may be permanently filed in his AMHRR.  Alternatively, it may be filed in his unit personnel file. 

8.  On 18 May 2001, the applicant acknowledged receipt of the reprimand and submitted a statement indicating his frustration with his battalion commander's refusal to consider alternative courses of action.  He added that the events that led to this situation were a direct result of the battalion's hostile work force that included an environment of zero defects, micromanagement, and leadership by intimidation.  

9.  After careful consideration of the facts and circumstances pertaining to the applicant, the CG, USAJFKSWCS directed permanent filing of the GOMOR in the performance folder of the applicant's AMHRR.

10.  During May 2001, he received the contested report – an RFC OER which covered 4 months of rated time from 23 December 2000 through 7 May 2001. His rater was LTC RWM, the Battalion Commander, and his Senior Rater was COL EWA, the Group Commander.  The contested OER shows in:

	a.  Part  IVa (Army Values) the rater placed an "X" in the "No" block for the "Honor," "Loyalty," and "Duty" values. 

	b.  Part IVb (Leader Attributes/Skills/Actions), the rater placed an "X" in the "No" block for the "Mental" and "Emotional" attributes.

	c.  Part Va (Performance and Potential Evaluation (Rater) - Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote," block and entered the following comments:

[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, [Applicant] has engaged in a pattern of misconduct, and on 7 May, 2001, I relieved him from command for gross insubordination and failure to follow orders.  [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 [Applicant] to watch his tone but he still continued in his attack until I threatened his immediate relief.  I later counseled [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.  [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 Senior Service College (SSC).  Limited potential for future service in the Army.

	d.  Part VIIa (Senior Rater - Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Do Not Promote" block and a second "X" in the "Yes" block to indicate he senior rated 44 officers of this grade (at the time) and that a DA Form 67-9-1 (Officer Evaluation Report Support Form) was not received with this report and considered in his evaluation and review.

	e.  Part VIIb (Potential Compared with Officers Senior Rated in the Same Grade), the senior rater rated the applicant "Below Center of Mass - Retain."

	f.  Part VIIc (Comments on Performance/Potential), the Senior Rater entered the following comments: 

The majority of [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 lack of support for his chain of command.  [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.

11.  The applicant's Senior Rater referred the contested OER to the applicant for comments.  He acknowledged receipt and submitted a response on 30 May 2001.  The applicant stated essentially that he was frustrated with his battalion commander's refusal to consider alternative courses of action.  He added that the events that led to this situation were a direct result of the battalion's hostile work force that included and environment of zero defects, micromanagement, and leadership by intimidation.  

12.  The contested OER was signed by his rating officials and himself on 24 May 2001.  The rebuttal memorandum was attached to the contested OER and forwarded to Headquarters, Department of the Army (HQDA) for filing.  It was processed by the U.S. Army Human Resources Command (HRC) on 26 June 2001. 

13.  Subsequent to his relief, he was reassigned to another unit at Fort Bragg, NC, and he was promoted to lieutenant colonel on 1 January 2002.  He served in a variety of stateside or overseas assignments.  He also had over 12 successful OERs between the date he received the GOMOR and the date he retired.

14.  On 21 January 2010, he petitioned the Department of the Army Suitability Evaluation Board (DASEB) for correction to his AMHRR to include removal of a RFC OER and two GOMORs, with associated documents, and referral to an SSB for promotion to COL.  However, on 18 March 2010, the DASEB voted unanimously to deny his request. 

15.  He retired on 31 August 2011 and he was placed on the Retired List in his retired grade of LTC on 1 September 2011. 

16.  In December 2011, he petitioned the ABCMR to remove the contested OER and the GOMOR, dated 11 May 2001, as well as consideration for promotion to COL by an SSB.  On 26 July 2012, the ABCMR voted unanimously to deny his request. 

17.  He provides two statements:

	a.  A statement, dated 17 October 2012, from Retired General S--n Mc-------l who supports the applicant's efforts to redress the derogatory information in his record, reconsideration for promotion, and reinstatement on active duty.  The General has known the applicant for 12 years and recently served with him in combat in 2010.  Based on his interaction with the applicant, the General believes the applicant possesses honest assessments, keen observations, and clear operational prospective.  

	b.  A statement, dated 26 January 2013, from Retired COL E---n W. A------n who states he served with the applicant during his RFC and he was his Senior Rater.   He describes his command decision to relieve the applicant as poor.  He also believes the relief for cause was the only alternative at the time for an unfortunate set of circumstances.  He now believes the incidents and the escalating emotions brought in by the battalion commander should have been handled in a less severe fashion.  He supports approval of the applicant's request. 
18.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the AMHRR and states the performance folder 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.  Appendix B-1 states letters of reprimand and OERs are filed in the performance folder of the AMHRR. 

19.  Army Regulation 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.

20.  Army Regulation 600-37, paragraph 7-2, provides that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.

21.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, prescribed policies and tasks for the Officer Evaluation Reporting System that included reporting systems for academic performance and potential. An evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly-designated rating officials, and to 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 AMHRR be altered, withdrawn, or replaced with another report will not be honored.

22.  Army Regulation 623-3 (Evaluation Reporting System), currently in effect, states an evaluation report accepted by HQDA 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 AMHRR 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  the presumption of regularity will not be applied to the report under consideration; and action is warranted to correct a material error, inaccuracy, or injustice.

23.  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.  When it is brought to the attention of a commander that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander or commandant will conduct an inquiry into the matter.  The Commander's Inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by HQDA, and the conduct of the rated Soldier and members of the rating chain.  The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official. 

24.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  Chapter 7 provides for SSBs. Paragraph 7-2 states SSBs may be convened under Title 10, U.S. Code, section 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following:  (1) An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error.  This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the active duty list; (2) the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error; or (3) the board that considered an officer from in or above the promotion zone did not have before it some material information. 

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was given a mission by his battalion commander and he perceived the mission was undoable.  When his battalion commander insisted it be done, the applicant 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, and the CG who ultimately relieved him from command. 

2.  With respect to the contested OER: 

	a.  The applicant was relieved from command by authority of the CG, USAJFKSWCS.  Accordingly, he received an RFC OER.  The contested RFC OER was prepared by the properly-designated rating officials and is properly filed in the applicant's AMHRR in accordance with the governing regulation.  The contested OER was referred to the applicant and he submitted a rebuttal.  Both the contested OER and the applicant's rebuttal are properly filed in his AMHRR. 

	b.  There is no evidence and the applicant has not provided sufficiently compelling evidence which shows the contested OER is substantively inaccurate and does not accurately reflect his performance or potential or that his rater and/or senior rater did not comply with the regulatory requirements of evaluating his in a fair and unbiased manner.  

	c.  A Commander's Inquiry was neither needed nor warranted.  The applicant's chain of command, including the battalion commander as well as the group commander were fully aware of his misconduct, relief, performance, and the facts surrounding his relief.  Furthermore, the CG, USAJFKSWCS was also fully aware of the circumstances.  After all, the CG ordered/directed the relief.  A request to the same CG to inquire about the very same issues that he, himself was aware of, was clearly unwarranted. 

	d.  The statement submitted by the General was noted.  However, the General was neither in the applicant's rating chain at the time nor is he privy to the what occurred in May 2001, aside from what the applicant had told him.  

	e.  Likewise, the statement submitted by the applicant's former Senior Rater was also noted.  However, statements from rating officials often reflect retrospective thinking, or second thoughts, prompted by an applicant's non-selection or other unfavorable personnel action.  As a result, such claims will not, alone, serve as the basis of altering or withdrawing an evaluation report.  There is no new information submitted by the applicant, counsel, or the former Senior Rater supporting the discovery of new information that would have resulted in an improved evaluation had it been known at the time of report preparations.  

3.  With respect to the GOMOR:


	a.  The available evidence shows the applicant failed to follow orders and was insubordinate.  The reprimand stated this was his second for such an offense.  His misconduct reflected a complete lack of respect, loyalty, duty, and support for the chain of command and is inconsistent with his oath of office.  His battalion commander had lost complete trust and confidence in his ability to continue in command.  Accordingly, the applicant received a GOMOR.  

	b.  He was afforded the opportunity to review all of the evidence against him and to submit matters in his own behalf prior to a final filing decision.  He did so.  After careful consideration of the applicant's case and his rebuttal, the CG ordered the filing of the GOMOR in the applicant's AMHRR.  The GOMOR is currently filed in the performance folder of his AMHRR.

	c.  The applicant was reprimanded not only for his failure to follow orders and being insubordinate, but for failing to respond positively to counseling for similar previous incidents of failing to follow orders.  Among the purposes of filing unfavorable information is protection, not only of the Soldier's interests but for the Army's interests as well.  Here, the applicant violated that trust.  His conduct was inexcusable and his actions brought discredit upon himself and the Army.  The GOMOR was correctly filed.  The applicant has not proven this GOMOR to be either untrue or unjust.

	d.  His post-GOMOR service and/or achievements are noteworthy, but they do not outweigh his misconduct that warranted the GOMOR.  The quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or prejudicial to good order and discipline.  The applicant was a MAJ, an officer, a commander, and a Soldier.  His actions caused his chain of command to question his ability to command. 

	e.  The GOMOR is an administrative tool used by the imposing officer to train and rehabilitate.  Once the GOMOR was filed in his AMHRR, it became a permanent record and will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board.  There is insufficient evidence to support removal of this GOMOR from his records.  

4.  With regard to the SSB and reinstatement, since the removal of the GOMOR and contested OER is not warranted, the applicant has not shown a material error, and since there is no material error, there is no basis for an SSB or a reason to reinstate the applicant to active duty.  


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 to amend the decision of the ABCMR set forth in Docket Number AR20110025116, dated 26 July 2012. 



      _______ _   _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)                                         AR20130013745





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ABCMR Record of Proceedings (cont)                                         AR20130013745



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