IN THE CASE OF:	   

		BOARD DATE:	  25 June 2014

		DOCKET NUMBER:  AR20140002187 


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 of a DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period 23 June 2011 through 6 January 2012 (hereafter referred to as the contested OER) from his official military personnel file (OMPF).

2.  The applicant states, in effect:

* the DA Form 67-9 was based on false information and is blatantly unjust  
* the referred OER was almost based solely on the false allegations in a "well plead" court case which he won (see CV13-00XX-XX) 
* court cases CV13-00XX-XX and STCV13-0XXXX and the enclosed Affidavits prove the police violated his civil rights when Ms. AT trespassed at his residence, was not removed, and he was forced to convert property
* the enclosed evidence proves he is not a racist, or an abuser of women
* he did not provoke the police when someone trespassed

3.  The applicant provides:

* Court Disposition Order CV13-00XX-XX
* Officer Special Review Board (OSRB) Record of Proceedings and Appeal
* Contested OER
* Sworn statements
* Memorandum for Record (Second Interview with Applicant)
* Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation findings and recommendation
* General Officer Memorandum of Reprimand (GOMOR)
* Court case STCV13-0XXXX and related exhibits 
* Motion for Default Judgment
* Affidavits from witnesses
* Email

CONSIDERATION OF EVIDENCE:

1.  Having had prior Navy enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army on 30 August 2007.

2.  He was serving in the Regular Army Judge Advocate General’s (JAG) Corps in the rank of captain at the time of his application to this Board.

3.  Major General (MG) RA, Commanding General, Headquarters, 3rd Infantry Division, Fort Stewart, GA, appointed Major (MAJ) LR as an investigating officer (IO) pursuant to AR 15-6 for the purpose of an AR 15-6 investigation to examine the facts and circumstances surrounding the allegations that the applicant's statements violated the Army’s Equal Opportunity (EO) Program and that he acted in a way that was prejudicial to good order and discipline or was of a nature to bring discredit upon the Armed Forces.  The IO's investigation was to specifically address the following:

a. Over the past year, did the applicant make any statements that were in 
violation of AR 600-20 (Army Command Policy), chapter 6, the EO in the Army 
Program?  Did those statements amount to racism, prejudice, or disparaging 
terms as defined in AR 600-20, paragraph 6-2(c)?  If so, what did he say and 
who did he make these statements to?  Were the statements directed at any 
particular person or class of persons?

b. Based on the totality of the alleged statements, if true, would the applicant
appear to be able to provide EO and fair treatment for military personnel and
family members without regard to any particular trait or characteristic and
provide an environment free of unlawful discrimination and offensive behavior in 
accordance with AR 600-20, paragraph 6-2(a)?

   c.  Over the past year, did the applicant act in a way that was prejudicial to good order and discipline or of a nature to bring discredit upon the Armed Forces?

   d.  Were there witnesses to any of his statements or actions, to include:  (1) a Savannah-Chatham Metropolitan Police incident on or about 10 August 2011, and (2) Ms. AT allegedly being pushed out of a moving car?  If so, interview any witnesses to either corroborate or contradict the allegations.

4.  A memorandum from the IO to MG RA, dated 7 November 2011, stated that an AR 15-6 investigation was conducted and based on a preponderance of the evidence, the IO made the following findings:

	a.  The investigation was not conducted under the terms of AR 600-20, Chapter 6 (EO Program of the Army); however, standards relative to fair treatment for military personnel and family members contained in that section of the regulation were relevant in assessing the conduct of the applicant described in the course of the investigation.

	b.  During the previous year, the applicant had made numerous statements and communications to Ms. AT, a non-Department of Defense (DOD) civilian, to a current co-worker, and to a civilian police officer that amounted to racism, prejudice, and disparaging terms.  The IO listed specific statements found to have been made by the applicant verbally or by text message.

	c.  On 11 August 2011, the applicant precipitated a confrontation with a Savannah, GA police officer who responded to a property dispute between the applicant and Ms. AT.  The confrontation arose over the efforts of Ms. AT, a former girlfriend of the applicant, to recover personal property she reportedly left at his apartment.  Although he may have had a legal right to deny her entry to recover personal property she reportedly left at his apartment without his permission, his conduct far exceeded that appropriate to an officer.  The applicant without provocation made disparaging and racial remarks that were of a nature to bring discredit upon the Armed Forces.

	d.  On numerous occasions the applicant demonstrated an inability to control his emotions or his anger.

	e.  On another occasion, near the installation’s access control point, the applicant and Ms. AT got into an argument while he was driving her in his car.  The argument culminated in the applicant reaching across Ms. AT, opening her car door, throwing her purse out the door, and pushing her in an attempt to get her out of the car.  His conduct created a threat to the safety and welfare of Ms. AT, and potentially to others on the roadway.

	f.  The applicant had several friends and former co-workers or supervisors who spoke positively of his duty performance and the absence of any racial bias in the workplace.  However, the IO did not find that the positive character statements overcame the evidence that supported other statements made by the applicant at other times, and none of the witnesses were able to refute the specific statements made by and attributed to the applicant.

	g.  In two interviews with the applicant the IO did not find him to be reliable or credible in refuting the allegations of his inappropriate remarks and alleged misconduct.  The IO described, in detail, the applicant’s behavior and comments during the interviews.

5.  The IO recommended, based on the findings, that the applicant receive appropriate disciplinary action and be ordered to get anger management counseling and sensitivity/cultural awareness training to address his anger issues and his racist attitudes.  The IO further recommended that the investigation be forwarded for appropriate review of the applicant's fitness as a Judge Advocate.

6.  On 7 November 2011, the above-mentioned AR 15-6 investigation received a legal review and was determined to be legally sufficient for MG RA to approve the findings and recommendations and to take appropriate administrative action deemed necessary.  The legal review officer noted the following:

* the investigation substantially complied with legal requirements
* the findings were supported by the greater weight of the evidence
* the recommendations were consistent with the findings
* disciplinary action would be appropriate for documenting the applicant's misconduct
* recommendation for anger management and sensitivity training was consistent with the findings concerning the applicant's racially-based insensitive statements and instances of angry outbursts
* recommendation to forward the investigation through the JAG Corps technical chain for evaluation is appropriate for determining whether the applicant’s conduct bears on his fitness for continued service as a Judge Advocate

7.  On 7 November 2011, MG RA reprimanded the applicant for engaging in conduct that was unbecoming of an officer and of a nature to bring discredit upon the Armed Forces.  He stated the applicant assaulted a civilian female while operating a vehicle on public roads and provoked a confrontation with members of the Savannah-Chatham Metropolitan Police Department.  In addition, he made numerous disparaging and racially prejudicial remarks, verbally and in text messaging.  The imposing authority stated the applicant's unprofessional behavior displayed a lack of judgment and a lack of commitment to Army values.  He stated the applicant had brought discredit upon the Army and committed violations of the Uniform Code of Military Justice.  He further stated that prior to making a filing decision he would consider any matters the applicant presented to him.

8.  On 23 November 2011, the applicant submitted a response to the GOMOR.  He requested that the GOMOR be set aside or that it be filed in his local file.  He stated that he was rebutting the allegations made against him.  Included in his rebuttal were witness statements and other evidence to prove he did not commit those offenses.  He stated that in his rebuttal he proved his ex-girlfriend lied about all three allegations; her real intent was to ruin his career for ending a year-long dysfunctional relationship. 

   a.  He denied attempting to push Ms. AT out of the car and throwing her purse out of a window.  However, he acknowledged that he made statements similar to "White trash like P is all you can get" and "You will never sustain a relationship with a successful black man; only poor white enlisted trash this is the only kind of man that puts up with you."  He contended that although he did not remember the context of the text message, "I am on a mission.  As I rise through the ranks I will have more power to seek revenge for my people.  As you see this discrimination bull_ is still around," he was sure there was no discrimination, and he felt that the term "revenge" was meant as "justice."  He stated he apologized if the text messages were offensive to anyone.

   b.  Attached to his rebuttal to the GOMOR was a letter, dated 4 July 2012, from the applicant’s attorney (Mr. EM) to the applicant.  In the letter, Mr. EM further explained a phone conversation he had with Ms. AT on 7 May 2012.  Mr. EM stated, in pertinent part that:

   	(1)  Ms. AT stated her prior statement to the applicant’s command was taken out of context and exaggerated.  She would prepare a new statement which would largely absolve the applicant of wrongdoing, deny that the applicant assaulted her in a vehicle, explain the circumstances of the incident at the applicant’s apartment, and affirm that she merely believed the applicant had anger problems.  She believed the applicant’s command exaggerated the negatives in her statement and ignored the positives.  Largely, her intent in making a statement was to get the applicant's command to have the applicant seek counseling.  Additionally, she was upset and angry at the time of the initial statement.
   
   	(2)  Mr. EM stated that Ms. AT never provided the letter she stated she would write and send to the applicant’s attorney.

9.  On 1 December 2011, MG RA directed the GOMOR be filed in the applicant's local file for a period of 12 months.
10.  During January 2012, the applicant received a contested report – a permanent change of station OER which covered 6 months of rated time during the period 23 June 2011 through 6 January 2012.  He was serving as an Administrative Law Attorney.  His rater was MAJ NA, Chief Administrative Law, and his senior rater was Colonel RB, Staff Judge Advocate.  The contested OER shows in:

	a.  Part IId (Authentication) – the senior rater placed an "X" in the "This is a referred report, do you wish to make comment?"  The "Yes, comments are attached" box is marked with an "X."

	b.  Part  IVa (Army Values), the rater placed an "X" in the "No" block for "Honor" and "Respect."

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

	d.  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 "Other," block and entered the following comments:

While [applicant's] duty performance was satisfactory during the rated period, his off-duty conduct was unbecoming of an officer and of a nature to bring discredit upon the Armed Forces.  An informal investigation substantiated that [applicant] provoked a confrontation with members of the Savannah-Chatham Metropolitan Police Department and made disparaging and racially prejudicial remarks, verbally and in text messages.  While on duty [applicant] handled over 200 legal actions during the rating period.  His reviews included:  AR
15-6 investigations, commander inquiries, line of duty investigations, summary courts-martial, financial liability investigations, community relation events, official representation funding requests, use of invitational travel orders, and memorandum of agreements.  [Applicant] continued to build on his confidence and expertise by conducting formal briefings to Article 32, investigating and summary courts-martial officers.  As the Fort Stewart/Hunter Army Airfield Office of the Staff Judge Advocate representative, [applicant] attended and advised the Armed Forces Disciplinary Control Board and the Department of Public Affairs and Relations committees.  [Applicant] showcased his knowledge when he provided legal briefings on the Posse Comitatus Act and Standing Rules for the Use of Force to the Fort Stewart/ Hunter Army Airfield Guard Augmentation and Quick Reaction Force.  The rated officer has completed or initiated an Army Multi-Source Assessment and Feedback/360 within the last 3 years.
	e.  Part Vc (Comment on Potential for Promotion), the rater entered the comment: "[Applicant] has made substantial contributions to the success of the office; however, he should not be promoted.  [Applicant's] personal conduct falls well short of Army Values.  [Applicant] lacks the qualities and values for promotion or for positions of greater responsibility."

	f.  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 25 officers of this grade (at the time) and that a DA Form 67-9-1 (Officer Evaluation Report Support Form) was received with this report and considered in his evaluation and review.

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

	h.  Part VIIc (Comments on Performance/Potential), the senior rater entered the following comments: 

[Applicant's] successful performance during this rating period was offset by his off-duty misconduct as substantiated in an informal investigation.  His primary contributions to the Administrative and Civil Law Division were numerous reviews of community relation event requests, financial liability investigations, official representation fund requests, and advising Article 32 and summary courts martial officers.  Continue to assign to developmental jobs that will afford him the opportunity to gain experience and achieve his potential.  Do not promote.  [Applicant] refused to sign this evaluation as the rated officer.

11.  On 4 January 2012, the applicant's senior rater referred the contested OER to him for acknowledgment and the opportunity to provide comments.

12.  On 4 January 2012, he acknowledged receipt of the notification memorandum and indicated he would submit comments.

13.  On 13 January 2012, he submitted a response wherein he stated:

	a.  The OER for that period did not deduct the period that he was on convalescent leave due to surgery from 3 August to 15 September 2011.  In accordance with AR 623-3 (Evaluation Rating System) that time must be deducted from the rating period if it was over 30 days.  The OER did not reflect his surgery, the rehabilitation, the complications from the surgery, nor the prescription medication (oxycodone, narcotic) that he was under that consumed much of that OER rating period which affected and added to stress at work while coping with the accusations from his ex-girlfriend and was a major part of the informal investigation and his rebuttal.

   b.  The Army Physical Fitness Test (APFT) section of the OER did not accurately reflect that he was on a permanent profile and that he did not participate in an APFT nor did he give his height and weight during that period in accordance with AR 623-3.

   c.  The OER did not adequately reflect his successful stint as Acting Chief of Administrative Law while having the experience of a Junior Captain with only 1 year as an active duty Judge Advocate.  The OER did not state the personnel that he supervised, including summer interns, nor did it state that he was a trainer.  The OER describes his work as only satisfactory during this period.
   
   d.  MG RA stated in a meeting after reading his rebuttal that he intended that the applicant be able to continue his career and therefore filed a GOMOR in his local file.  MG RA realized that the incidents stemming from the informal investigation contained many inconsistent accusations made by an ex-girlfriend to ruin a promising career.  It was never his intent that this domestic situation be reflected in a potentially career-ending referred OER which would be filed in his OMPF.
   
14.  The contested OER shows it was signed by the rater and senior rater on 20 January 2012.  The applicant's signature is not on the contested OER.

15.  On 9 May 2012, the applicant, through his counsel, requested a commander's inquiry (Cl) into the contested OER.

16.  MG RA directed a CI into the applicant's contested OER.  As a result of that inquiry, he determined that the applicant should have been afforded a second opportunity in the OER referral process to review and sign the OER subsequent to administrative changes made based on his initial review.

	a.  The CI established through the applicant's testimony that he would have signed the OER as it now appears in his file, had he been given the opportunity.  MG RA found no malicious intent on the part of the applicant's rating chain.  Failure to offer a second review to the applicant in the referral process was merely an oversight, since the changes made were administrative in nature.

   b.  The remaining complaints in the applicant's request for a CI were unsubstantiated.  Specifically, he found that MAJ RA was qualified to rate the applicant, that the referral procedures were appropriate subject to the second review for the applicant to sign, and there was a sufficient investigation to support the adverse comments in the report.
   
17.  On 2 May 2013, the OSRB denied the applicant's request for removal of the contested OER from his OMPF.  The OSRB stated the evidence submitted by the applicant did not justify altering or withdrawing the contested OER.

18.  A Superior Court of Chatham County Order, dated 5 June 2013, granted the applicant’s motion for a default judgment against Ms. AT as to liability and damages for intentional infliction of emotional distress, trespass, conversion, intrusion into seclusion, interference with business relations, and defamation.

19.  On 7 June 2013, the applicant requested reconsideration of the OSRB's denial.  He stated that after a bench trial, the Superior Court of Chatham County, GA, found that Ms. AT lied about all the allegations she reported to the military, lied to the Savannah police, trespassed on his property, defamed his character, and interfered with his military career.  He further stated the comments on the referred OER were not supported by the facts and circumstances.

20.  On 5 December 2013, the OSRB by unanimous vote determined the overall merits of the applicant's case were insufficient as a basis to amend the decision of the OSRB set forth on 2 May 2013.

21.  On 18 December 2013, in a letter the applicant submitted to the President, Department of the Army Suitability Evaluation Board, he requested in accordance with AR 600-37 (Unfavorable Information), that the referred OER in question be removed from his record due to substantive errors that made the OER unjust and flawed.  In this letter he rebutted the OSRB record of proceedings and decisions.  He also indicated in this letter that he had filed a civil lawsuit against the officers and police department that responded to the alarms at his apartment.  The ultimate outcome of that lawsuit is not in the available evidence.

22.  AR 623-3, dated 10 August 2007, prescribed the policies and tasks for the Army’s Evaluation Reporting System and included reporting systems for officers.  It included policy statements, operating tasks, and rules in support of operating tasks.

	a.  Paragraph 1-9 stated Army evaluation reports were assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer corps.  Performance would be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and other pertinent regulations.  Potential evaluations would be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

	b.  Paragraph 3-19 stated in pertinent part that any mention of unproven derogatory information in an evaluation report could become an appealable matter if later the derogatory information was unfounded.  This restriction was intended to prevent unverified derogatory information from being included in evaluation reports.  This paragraph further stated any verified derogatory information could be entered on an evaluation report.

	c.  Paragraph 6-7 stated that evaluation reports accepted for inclusion in the Soldier’s official record were presumed to be administratively correct, have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

	d.  Paragraph 6-11 stated that to justify deletion or amendment of a report, the appellant must produce evidence establishing clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

23.  AR 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  Paragraph 3-10a states that an investigation finding is a clear and concise statement of a fact that can be readily deduced from evidence in the record.  It is directly established by evidence in the record or is a conclusion of fact by the IO or board.  Negative findings (for example, that the evidence does not establish a fact) are often appropriate.  The IO or board will normally not exceed the scope of findings indicated by the appointing authority.  The findings will be necessary and sufficient to support each recommendation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested OER contains information that is based on false information that it is blatantly unjust.  Further, he essentially contends the contested OER should be removed as a matter of justice, because he was granted a civil court-ordered default judgment against Ms. AT and he filed a lawsuit against the officers and police department that responded to the alarm at his apartment.  His contentions were carefully considered.  However, in order to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly establishes that:
   a.  the presumption of regularity should not be applied to the report under consideration; and 

   b.  action is warranted to correct a material error, inaccuracy, or injustice.

2.  The AR 15-6 investigation received a legal review which deemed it legally sufficient, and supported the adverse comments reflected in the contested report.

3.  A Cl was conducted to address his contentions as they pertained to the processing of the contested OER.  With the exception of an administrative oversight by the rating officials in which he was not afforded a second opportunity to review and sign the contested OER in the OER referral process his contentions were determined to be unsubstantiated.

4.  The contested OER referenced his off-duty conduct being unbecoming of an officer and of a nature to bring discredit upon the Armed Forces and noted that an informal investigation substantiated that he provoked a confrontation with members of the Savannah-Chatham Metropolitan Police Department and made disparaging and racially prejudicial remarks, verbally, and in text messages.

	a.  In his rebuttal to the GOMOR, the applicant disputed making statements and sending text messages that amounted to racism, prejudice, and disparaging terms by alleging the messages were taken out of context and that he used the term "white trash" to describe socio-economic status.  He stated in his rebuttal that he apologized if the text messages were offensive to anyone.  However, the evidence indicates the recipients of the statements perceived them to be discriminatory and prejudicial.  Further, he admitted to making a statement similar to that reported by Ms. AT which included "white enlisted trash," a troublesome characterization for an officer and lawyer to make.

	b.  The applicant has not provided any compelling evidence to dispute the narrative comments contained in the contested OER.

5.  The civil court order granting a default judgment against Ms. AT as to liability and damages dealt with Ms. AT’s trespass, conversion (bike rack), interference with business relations (interference with the applicant’s military career), and defamation of the applicant’s good name does not show the narrative comments in his contested OER were false or improper nor does a civil lawsuit he may have against the police officers and police department that responded to the alarms at his apartment.


6.  Given the foregoing, since the contested OER only referenced the disparaging remarks he used, the text messages he sent, and the confrontation with the police department, there is no available evidence to refute the rating official's narrative comments.  The rating officials were not prohibited from making comments regarding the applicant’s behavior during the rating period.

7.  The applicant has not provided sufficient evidence to show the OER was not processed in accordance with applicable laws and regulations.

8.  Based on the available evidence, the applicant has not provided clear and convincing evidence which shows the ratings and comments on the contested report were in error or that they were not the considered opinions and objective judgment of the rating officials at the time the report was rendered. 

9.  Additionally, there is no evidence in the available records and the applicant has not provided evidence showing the contested report was inaccurate, unjust, or otherwise flawed.  In view of the foregoing, there is no 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)                                         AR20140002187



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140002187



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1