IN THE CASE OF:	  

		BOARD DATE:	  23 October 2014

		DOCKET NUMBER:  AR20140015121 


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 correction of his military records by removing the DA Form 67-9 (Officer Evaluation Report (OER)) from his Official Military Personnel File (OMPF) for the rated period 3 October 2010 through 13 May 2011.  This is interpreted to refer to an OER for the period 3 October 2010 through 8 May 2011.

2.  The applicant states he re-appeals the subject OER.  He has 4 years time in grade as a Lieutenant Colonel (LTC) and anticipates being in the primary zone for Colonel (COL) with no pending personnel actions to his knowledge.  The basis of this appeal is substantive inaccuracy.  He is specifically appealing the derogatory comments, below center of mass entry, and under Part IV of this OER the "Integrity" box is checked "No" with comments in Part V that indicates his integrity was called into question by his "failure to adhere to establish[ed] force protection standards and for having an inappropriate relationship."  

3.  He received the Notice of Result of Elimination Proceedings on 28 February 2013, following receipt of the OER appeal (20101003-20110508) from the U.S. Army Human Resources Command (HRC) on 07 February 2013.  The Notice of Result of Elimination Proceedings contain the Formal Board of Inquiry "Verbatim Findings and Recommendations" that proves statements in the OER are factually incorrect.  Therefore, the OER should be removed.  Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-19(b) and (c), state that "References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting an evaluation report to HRC."  If the rated Soldier is acquitted at a court-martial, or found not guilty at nonjudicial punishment proceedings under Article 15, Uniform Code of Military Justice, comments about the underlying incident will not be included in the evaluation, subject to the following exception.  This restriction is intended to prevent unverified derogatory information from being included in evaluation reports.  It will also prevent unjust prejudicial information from being permanently included in a Soldier’s OMPF, such as when charges that are later dropped or when charges or incidents of which the rated Soldier may later be cleared.  

4.  The allegations of an inappropriate relationship were found factually incorrect by a formal board of inquiry (BOI) on 7 February 2013, at Fort Bragg, North Carolina.  The BOI wrote, "Did not, at or near Bogota, Colombia, between on or about 31 December 2008, and on or about 08 April 2011, engage in an inappropriate relationship."  Under Part IV of the OER, the "Integrity" box is checked "No" with comments in Part V that indicate this is due to his "failure to adhere to establish[ed] force protection standards and by having an inappropriate relationship."  The allegation that he failed to conduct a background check in accordance with established force protection requirements are factually incorrect.  A BOI stated that he, "Did not, at or near Bogota, Colombia, between on or about 06 January 2011, and on or about 08 April 2011, violate general order to wit: paragraph 8, USMILGP Colombia General Order Number One, dated 06 October 2009, by wrongfully failing to report a close personal relationship with…"  

5.  The OER was based upon an Army Regulation 15-6 investigation that contained numerous procedural and substantive errors that were not factually correct.  The BOI's "Verbatim Findings and Recommendations" stated, "We find that the Army Regulation 15-6 was incomplete and the OER based on the investigation should not adversely affect the applicant's ability to serve."  The Officer Special Review Board (OSRB) Docket Number AR20130008331 maliciously ignored evidence of photos, written statements, and sworn documents while falsely accusing him of accusations found by the BOI to be false.  It seems the BOI relied solely on the appellant’s testimony, and determined the appellant’s ability to interact with the local population facilitated his job performance and allowed for local friendships and business relationships to blossom, and it was these local relationships coming under strain due to personal, family, and business hardships that led to claims and counter-claims of impropriety.  

6.  There is no evidence showing an Army Regulation 15-6 investigation dealt with the appellant facilitating his job performance, or allowing for local friendship and business relationships to blossom.  The investigation dealt with the appellant’s behavior towards his wife; his failure to report contacts with a local national; his inappropriate behavior towards a nanny; his violation of no contact orders; an inappropriate relationship; and failure to stay in allowed places after curfew.  The portion of the investigation dealing with Ms. JPG was substantiated as an inappropriate relationship with a local national whom he failed to report as a local contact, and it had nothing to do with fostering business relationships or facilitating his job performance.  

7.  "Given the available evidence, the BOI’s conclusion is not supported by a preponderance of the evidence that he did not commit the misconduct, and there is no obvious new evidence for the conclusion the Army Regulation 15-6 investigation was incomplete or the appellant provided evidence to challenge each finding in the Army Regulation 15-6 investigation.  He has not been absolved of the misconduct, and has not provided an adequate response for assaulting his wife; his inappropriate relationship with Ms. JPG; his failure to report contact with local nationals; or, his failure to be at allowed locations after curfew."  A false statement by the OSRB is: "He has not been absolved of the misconduct."  He did not receive a permanent General Officer Memorandum of Reprimand (GOMOR).  It was determined that the photos, written and sworn statements, and marital status warranted not giving him a GOMOR.  The imposing commander upheld and agreed with the BOI absolving him of "misconduct" implied by the OSRB.  A false accusation by the OSRB is:  [the applicant] "has not provided an adequate response for assaulting his wife."  He was found not to have assaulted [his wife] as evidenced by a written statement that was ignored during the Army Regulation 15-6 investigation and by photos presented to the BOI.  These photos were removed prior to being shown to the OSRB.  Each photo taken the night of the alleged assault show he did not use unlawful force nor did he bruise his ex-wife nor did he assault his ex-wife in any way shape or form in accordance with the written statement.  Another sworn declaration denied that the fictitious assault, as alleged, took place.  This coincides with another statement saying, "I did not notice any bruises or marks on her, or any indication in her mannerisms that [the applicant] had hit or harmed her in any way physically" and with the photos taken by him during the alleged assault.  

8.  A false accusation by OSRB is: "his inappropriate relationship with 
Ms. JPG."  The evidence does not support a finding of an "inappropriate relationship" with Ms. JPG.  On 6 September 2008, [the applicant] was legally separated under Colombian law.  Therefore, a friendship with another woman, under these circumstances, is not inappropriate or improper.  Moreover, the language "inappropriate relationship" is extremely subjective.  Eating at a restaurant with a friend was considered an "inappropriate relationship."




9.  The applicant provides copies of:

* Tab 1:  OER for period 9 May 2011 through 31 October 2011 (Note: this is not the subject OER)
* Tab 2:  Memorandum, Army Review Boards Agency (ARBA), subject: OER Appeal, dated 4 February 2013
* Tab 3:  Memorandum, 82nd Airborne Division, subject: Notice of Result of Elimination Proceedings, dated 28 February 2013
* Tab 4:  DA Form 1574 (Report of Proceedings by Investigating Officer (IO)/Board of Officers, dated 7 February 2013, with enclosures
* Tab 5:  DA Form 2823 (Sworn Statement), dated 11 April 2011 (Page 1 only)
* Tab 6:  A statement addressed to "Whom it May concern, dated 23 May 2011
* Tab 7:  Letter from the applicant's legal representative, subject: Rebuttal to GOMOR, dated 26 May 2011, with an enclosure written in Spanish, with a cryptic translation (21 pages)
* Tab 8:  Copies of photographs, mostly dated, but without specific remarks or explanation (6 pages)
* Tab 9:  a sworn declaration written in Spanish with translation (5 pages with page 3 and 5 blank)
* Tab 10:  A DA Form 2823, dated 12 April 2011 (2 pages)
* Tab 11:  Copies of 9 photographs, dated but without explanation (1 page)
* Tab 12:  Twelve pages of documents written in Spanish without translation
* Tab 13:  False Sworn Statement (1 page, undated and unsigned)
* Tab 14:  Rental car contracts and expenses, dated in 2006 (1 page)

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army as an LTC, pay grade O-5.

2.  The subject OER for the period 3 October 2010 through 8 May 2011 is a change-of-rater report.  It was a referred report signed by the applicant on 
19 May 2011.  He provided referral comments in a memorandum, dated 26 May 2011.

	a.  Part IVa (Army Values) contains a "NO" entry for Integrity.

	b.  Part IVb (Leader Attributes/Skills/Actions) contains all "YES" entries.

	c.  Part V (Performance and Potential Evaluation (Rater)) shows the rater marked the box indicating "Satisfactory Performance, Promote."  The rater's comments included the following statements:

* he did a good job as the "TAFT" Chief supporting the Military Group's priority program during a critical transition period with high operation tempo
* he successfully managed the transition from UH-1 helicopter to the OH-58 to include delivery, training, and maintenance of both platforms until the UH-1s were completely phased out
* he provided valuable technical assistance in developing a 5-year plan for the "RHTC" so the Colombian military could manage the center with no U.S. assistance
* he provided valuable assistance to the Colombian Army Aviation Brigade to increase the operational readiness rate of their UH-60 Blackhawk fleet
* "[the applicant's] personal integrity was called into question by his failure to adhere to establish[ed] force protection standards and by having an inappropriate relationship contrary to expectations of an officer of his rank"

	d.  Part VII ((Senior Rater) marked the box indicating "Fully Qualified."  He rated the applicant's potential as "Below Center of Mass – Retain."  He stated the applicant possessed the requisite skills, competence, and aptitude to excel.  His official actions while leading the Aviation Technical Assistance Field Team Colombia were superb.  However, his personal conduct had not lived up to the highest traditions of the United States Army and fell short of the behavior expected of a commissioned officer.

3.  In a memorandum for the Commander, U.S. Army Security Assistance and Training Management Office (USASATMO), Fort Bragg, NC, dated 26 May 2011, the applicant identified the following deficiencies concerning the subject OER:

	a.  Under Part IV, the "Integrity" box is checked "No."  In the comments section of Part V, it is stated that this is due to his failure to adhere to established force protection standards and because he had an inappropriate relationship.

	b.  The allegations that he failed to conduct a background check on JPG in accordance with established force protection requirements are unsubstantiated.  He initiated a background check on JPG.  The then current "USG" Contractor, who was his former administrative assistant, confirmed receiving a Regional Security Office "No Records Found" approved background check in 2008 as exhibited in the GOMOR rebuttal.  He submitted the contact report/background check request.  He had requested a background check on JPG because she was assisting him with legal paperwork at the time.

	c.  Army Regulation 623-3 states that references will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to Headquarters, Department of the Army (HQDA).  If the rated Soldier is absolved, comments about the incident will not be included in the evaluation.  The allegations of an inappropriate relationship are the result of an Army Regulation 15-6 informal investigation, the findings and recommendations were submitted on 29 April 2011.  Currently, the administrative action resulting from this investigation is still in the period for rebuttal, and final action has not been taken.  Furthermore, there are numerous procedural and substantive errors in the investigation.

	d.  He contended the allegations of adultery were found unsubstantiated.  His integrity remains above reproach.

4.  On 8 June 2012, HRC initiated an officer elimination action on the applicant for misconduct, moral or professional dereliction, and receipt of a referred OER.

5.  A BOI was initiated on 20 December 2012 by the Commander, 82nd Airborne Division, to determine whether the applicant should be retained on active duty or eliminated for cause.

6.  On 17 January 2013, the OSRB considered the applicant's appeal to remove the subject OER from his OMPF.  The OSRB Record of Proceedings (ROP) indicates:

	a.  The applicant based his appeal on both procedural and substantive inaccuracy in the subject OER.

	b.  He states that references made in the subject OER to the allegations of an inappropriate relationship were the result of an Army Regulation 15-6 investigation that had not yet been processed to completion.  As such, this constituted a procedural error.

	c.  He states the "No" checkmark in Part IV, Integrity, is a substantive error because:

* The allegation that he failed to conduct a background check is unsubstantiated
* All other allegations in the Army Regulation 15-6 investigation were found to be unsubstantiated
	d.  He states the subject OER was based on an Army Regulation 15-6 investigation that contained numerous procedural and substantive errors:

* There was no "inappropriate relationship because he was legally separated under Colombian law, where his wife was a legal resident
* The separation changed the legal status of their relationship
* The evidence used as a basis for the allegation is littered with translation errors
* He did not willfully violate a military order restraining him from initiating contact or communication with his wife
* He believed, based on a difference in language, that he was authorized to accept a phone call from his wife
* He contends that the language in the protective order is conflicting, unclear, and ambiguous
* He did not assault his wife and the IO was recklessly inaccurate and ignored direct evidence
* The errors in the investigation were so severe the original recommendation for reprimand was withdrawn
* None of his professional colleagues or subordinates confirmed or alleged any misconduct on his part

	e.  The OSRB determined the applicant failed to provide documentary evidence to substantiate his contention that there were numerous procedural and substantive errors in the investigation.  Furthermore:

* The incidents in question occurred during the rated period
* It appeared the rating officials had sufficient verified evidence in the investigation which was completed during the rating period
* The rating officials determined that inappropriate conduct had taken place
* The ratings and comments were indeed the considered opinions of the rating officials
* The applicant's issues regarding the GOMOR process were without merit because it was a separate administrative process
* The applicant's issues concerning the assault on his wife were without merit because the OER did not address it
* The applicant's assumption that he was subject to Colombian law was without merit because as an Army officer, he was subject to all laws, policies, and regulations associated therein

	f.  The OSRB further stated the checks and balances and rules in the rating system are in place to prohibit undue influence or unfair ratings.  Rating officials have a responsibility to balance their obligations to the rated officer with the obligations to the Army.  The senior rater concurred with the rater.  There was no evidence he suggested a change in the rating.  Furthermore, the applicant did not provide any evidence of an appeal of the subject OER to his rating chain.  He merely provided evidence he appealed the GOMOR.

	g.  Given the above, the OSRB denied the applicant's appeal.

7.  On 6 February 2013, the BOI convened to determine whether the applicant should be eliminated from the U.S. Army for any instances of misconduct, moral or professional dereliction, and receipt of a referred OER.  The summary of proceedings show:

	a.  The first witness, who testified for the government, was the IO who was appointed to conduct the Army Regulation 15-6 investigation into whether the applicant had an inappropriate relationship with Ms. JPG.  He stated, based on his questioning of the driver assigned to the applicant's wife, that there was a relationship and that the driver had taken the applicant to Ms. JPG's apartment.  When the witness later questioned Ms. JPG, she downplayed the relationship saying there was nothing wrong with going out with a friend.  In March 2011, the nanny working for the applicant's wife witnessed an incident where the applicant used unlawful force to wrestle a cell phone from his wife resulting in her having bruise marks.  Ms. JPG acknowledged having contact with the applicant after the military protective order was in effect.  The witness further testified that he had found by a preponderance of evidence that the applicant was not in his allowed places after curfew and that he had failed to conduct security checks on certain foreign nationals with whom he had close contact.  He was asked one question by a board member, to which he answered:  He was not aware of the date of separation, or if there even was one between the applicant and his wife.

	b.  The second witness, who testified for the defense, was a COL from the 1st Brigade Combat Team who stated, in response to the respondent's counsel, that the applicant was one of the first people he had met when he first arrived in the brigade.  The applicant was the senior advisor through "JRTC" and they talked throughout the deployment.  He had the best duty performance of any Soldier he knew and was the best advisor he knew.  The applicant's leadership style made everyone feel valuable.  His strongest quality was loyalty and dedication to the mission.  He would deploy with the applicant.  He was asked one question by the recorder to which he stated he had not known the applicant prior to the deployment of 2011.  He was also questioned by board member, to which he responded that the applicant is a terrific Soldier, leader and advisor.  The Army would be doing itself a disservice to lose him.

	c.  The third witness, who testified for the defense, was an LTC who had met the applicant in November/December 2011, prior to the deployment of the 1st Brigade Combat Team.  He stated that he had daily contact with the applicant until he moved to another area of Afghanistan.  He further stated the applicant's duty performance and leadership was excellent and contributed greatly to the success of their mission.  He thought the applicant's strongest trait was loyalty and mission competence.  The applicant had the great ability of establishing lasting relationships and he used that ability to complete the mission.  He stated the applicant was a great leader and an asset to the U.S. Army.  He would deploy with him, no questions asked.  The recorder asked him a question to which he responded that he did not know the applicant prior to deployment in December 2011.  The board members asked a question to which he responded that he did not have any contact with the applicant prior to November/December 2011.

	d.  The fourth witness, who testified for the defense, was an LTC who had known the applicant for a little over a year.  They met before deployment and had daily contact with him for the first month of the deployment.  He related how policemen came to him and told him of all the great things the applicant had done for them.  He gave them money out of his own pocket to buy equipment for the police force in Afghanistan.  The police chief spoke of the applicant's selflessness and that he liked working with him.  The applicant created a very comprehensive logistics system that dramatically impacted mission success.  He would deploy with the applicant in a heartbeat.  The recorder asked a question to which he responded that he did not know the applicant prior to his deployment in December 2011.  The board members asked a question to which he responded that he did not think the applicant had a traumatic brain injury but had ringing in his ears.  The applicant figured out the unit's logistics system and got supplies.  Neither he nor the applicant were currently aviators but he assumed the applicant was still a rated pilot.

	e.  The fifth witness, who testified for the defense, was a chief warrant officer two, who met the applicant in 1998.  He lost contact with the applicant during deployments, but stayed in contact because they both liked to shoot guns.  He had never seen the applicant's duty performance but everyone had good things to say about the applicant.  He was a great mentor and taught him how to be an officer.  The applicant's greatest trait was his patience and the ability to carry through out of dedication.  The applicant is an asset to the U.S. Army and he would deploy with him again in a heartbeat.  The recorder asked him a question to which he responded that he had no knowledge of the applicant's time in Colombia.  The board members asked a question to which he responded that he taught tactical shooting.  The applicant was very patient off duty.  He never met the applicant's family.
	f.  The sixth witness, who testified for the defense, was a chief warrant officer three, retired, who at the time of the BOI worked as the operations officer of a security training organization.  He worked with the applicant while they were in Colombia.  He never met anyone better at getting respect.  He testified that the applicant was one of the best advisors and the first to undertake a logistics mission.  What the applicant did had a lasting impact on the various U.S. missions.  The applicant had a calming influence and was able to work with all levels of rank.  The applicant was an asset to the U.S. Army and he would serve with him again.  The recorder asked a question to which he responded that the allegations had no impact on his duty performance or his integrity.  He believed that a Soldier following general orders is important to his job performance.  The board members asked a question to which he responded that he had met the applicant's ex-wife, as well as his father, at a training event.  He never saw the applicant angry at anyone.  What the investigation brought out was an abnormality which was inconsistent with his behavior.

	g.  The seventh witness, who testified for the defense, was a chief warrant officer four, who retired from the U.S. Army in 2007.  He had been a Special Forces helicopter pilot.  He still assisted the Colombian Government.  He had known the applicant since 2006 and worked with him on several occasions.  The applicant is the most loyal individual he has ever met.  He would serve with him anytime and anywhere.  He spent time with the applicant at work and outside of work.  Loyalty to the U.S. was his best quality.  He had never seen the applicant get angry.  The recorder asked a question to which he responded that he did not spend too much time with the applicant while in Bogota.  He saw the applicant and his wife at functions about 20 times together.  The board members asked a question to which he responded that the applicant was an incredible officer.  He held himself to the highest standard.  He never let personal issues bother his work performance and he always helped other Soldiers with their personal issues.  He met the applicant for dinner several times while in Colombia.  He had never met Ms. JPG.

	h.  The eighth witness, who testified for the defense, was a sergeant first class, retired.  He stated he met the applicant in 2006.  In Bogota he was the operations noncommissioned officer and they met five times a week.  He did not speak with the applicant on the weekends.  He met the applicant's wife when she visited.  The applicant was well known for taking care of Soldiers.  The applicant was dedicated to the mission and to his Soldiers.  He never saw any reason to question the applicant's integrity.  The applicant was an honest and loyal leader.  People were saying the applicant was having an affair, but he did not know anything.  He did not see that his character fit the allegations.  He would serve with the applicant again.  The recorder asked a question to which he responded that he did not know the applicant was separated, but he may have said something about it.  He had dinner with the applicant and his wife once in 2006.  He was not familiar with the applicant's conduct when he went to Bogota.

	i.  The ninth witness, who testified for the defense, was a sergeant first class who stated he worked hand in hand with the applicant during "JRTC" before deployment.  He often corresponded with the applicant while deployed.  The applicant was a great leader and always treated him with respect.  He believed the applicant was in the top 10 percent of officers in the Army.  The applicant was an asset to the U.S. Army and he would deploy with him again.  The recorder asked a question to which he responded that he met the applicant in December 2011.  The board members asked a question to which he responded that he "never heard or seen anything regarding females out of the applicant."

8.  The BOI verbatim findings and recommendations states the board had carefully considered all of the admitted evidence and personal testimony of all witnesses.  The BOI found, by a preponderance of this evidence that the applicant:

	a.  did not engage in an inappropriate relationship with Ms. JPG while married;

	b.  did not unlawfully strike his wife on the hands and arms with his hands;

	c.  did not willfully disobey a lawful command to avoid all contact and communication with Ms. JPG;

	d.  did not violate a lawful general order by wrongfully failing to report a close personal relationship with Ms. JPG;

	e.  did not violate a lawful general order by wrongfully remaining in unauthorized areas after the established curfew; and

	f.  had achieved success as an advisor.  His ability to interact with the local population facilitated his job performance and allowed for local friendships and business relationships to blossom.  It is these local relationships coming under strain due to personal family and business hardships that led to claims and counter-claims of impropriety.  The initial claims of impropriety against the applicant were identified and upheld through the Army Regulation 15-6 process.  Additional evidence provided by the applicant's counsel challenged each finding of the investigation and caused the balance of evidence to favor the applicant.  Therefore, the BOI found that the investigation was incomplete and the OER based on the investigation should not adversely affect the applicant's ability to serve.
9.  The BOI recommended the applicant be retained in the service.

10.  In a memorandum dated 26 February 2013, the Chief, Administrative Law, Fort Bragg, NC provided the following review of the BOI and required action:

	a.  the BOI proceedings, findings, recommendations, and allied documents were reviewed;

	b.  the BOI proceedings complied with the regulatory procedural requirements and all other pertinent authorities;

	c.  the errors, if any, should be considered harmless because they do not have a material adverse effect on the applicant's substantive rights;

	d.  the evidence sufficiently supported the BOI findings;

	e.  the BOI recommendation of retention was consistent with the findings; and

	f.  the Commander, 82nd Airborne Division was required, based on the BOI recommended retention, to close the board and to notify the applicant and HRC of the BOI recommendation and final action.

11.  On 28 February 2013, the Commander, 82nd Airborne Division, closed the elimination proceedings against the applicant and notified him and the HRC of his retention in the U.S. Army.

12.  On 26 September 2013, the OSRB again considered the applicant's appeal to remove the subject OER from his OMPF.  The OSRB ROP indicates:

	a.  The applicant based his appeal on both procedural and substantive inaccuracy in the subject OER.  He stated that the results of a BOI prove the contested statements in the subject OER are factually incorrect.  He references the statement by the Commander, 82nd Airborne Division contending that the Army Regulation 15-6 investigation was incomplete and the OER based on this investigation should not adversely affect the applicant's ability to serve.  The applicant provided a self-authored statement dated 13 April 2013 with the following enclosures:

* Copy of the subject OER
* Evaluation Report Appeal Notice, dated 7 February 2013
* Notice of Result of Elimination Proceedings, dated 28 February 2013

	b.  The ROP summarized the relevant new evidence.  The BOI (also referred to as an elimination board) found the applicant did not commit any of the misconduct addressed in the Army Regulation 15-6 investigation.  It also noted the applicant had clearly achieved success as an advisor.  His ability to interact with the local population facilitated his job performance and allowed for local friendships and business relationships to blossom.  It was these local relationships coming under strain due to personal family and business hardships that led to claims and counter-claims of impropriety.  The initial claims of impropriety against the applicant were identified and upheld through an Army Regulation 15-6 investigative process.  Additional evidence provided by the applicant challenged each finding of the investigative process and caused a balance of evidence to favor the applicant.  Therefore, the BOI found the Army Regulation 15-6 to be incomplete and the OER based on the investigation should not adversely affect the applicant's ability to serve.

	c.  The OSRB carefully considered the applicant's contention that the BOI had absolved him of the misconduct and that the derogatory statements on his OER were not factually incorrect.  However, after a careful review of the BOI, the OSRB concluded that of the nine witnesses who testified at the BOI, seven were character witnesses who were not associated with the applicant during the time in question.  The remaining two witnesses testified as follows:  A chief warrant officer three testified that the allegations against the applicant had no impact on his daily performance or integrity.  The IO (a COL) appointed to conduct the Army Regulation 15-6 investigation into the applicant's alleged inappropriate relationship testified that he had questioned the driver assigned to drive the applicant's wife for about 7 years.  When questioned about the inappropriate relationship, he stated that he had driven the applicant to MS. JPG's apartment.  When the COL questioned Ms. JPG, she downplayed the relationship and said there was nothing wrong with going out with a friend.  In March 2011, the nanny who worked for the applicant's wife stated she witnessed an incident where the applicant used unlawful force to wrestle a cell phone from his wife resulting in her having bruise marks.  MS. JPG acknowledged having contact with the applicant after the military protective order was in effect.  The COL found by a preponderance of the evidence that the applicant was not in his allowed places after the curfew and that he had failed to conduct security checks on certain foreign nationals with whom he had close contact.

	d.  The OSRB review of the BOI packet failed to disclose any compelling evidence submitted by the applicant that would have challenged each finding in the investigation.  The BOI determined the investigation was incomplete, but failed to specify what evidence was missing that would have been so compelling the IO would have reached a different conclusion.  The applicant elected not to participate in the investigation and invoked his right not to provide a sworn statement.

	e.  The OSRB concluded the BOI relied solely on the applicant's testimony and determined his ability to interact with the local population had facilitated his job performance and allowed for local friendships and business relationships to blossom.  There is no evidence showing the investigation dealt with the applicant facilitating his job performance, or allowing local friendships to blossom.  It dealt with the applicant's behavior towards his wife, his failure to report contacts with local nationals, inappropriate behavior towards a nanny, violation of no contact orders, an inappropriate relationship, and his failure to stay in allowed places after curfew.  The portion of the investigation dealing with Ms. JPG was substantiated as an inappropriate relationship with a local national whom he failed to report as a local contact, and it had nothing to do with fostering business relationships or facilitating his job performance.

	f.  Given the available evidence, the BOI's conclusions are not supported by a preponderance of the evidence and do not prove he did not commit the misconduct.  There is no new evidence showing conclusively that the investigation was incomplete or that the applicant had provided sufficient evidence to challenge each of its findings.  Accordingly, he was not absolved of the misconduct.

	g.  The applicant's contention that his OER was based on an investigation that contained numerous procedural and substantive errors that are not factually correct, was found to be without merit.

	h.  The applicant's contention that the Commander, 82nd Airborne Division had found the investigation to be incomplete and that his OER should not adversely affect his ability to serve was without merit.

	i.  The burden of proof for successfully removing an OER from his record is clear and convincing evidence that it contains material error, is inaccurate, or unjust.  The applicant has not provided this level of proof.

	j.  In view of the above, and based on a presumption of government regularity, the OSRB denied the applicant's appeal.

13.  Army Regulation 15–6 (Boards, Commissions, and Committees Procedures for IO's and Boards of Officers):

	a.  Provides that upon approval or other action on the report of proceedings by the appointing authority, the respondent or counsel will be provided a copy of the report, including all exhibits and enclosures that pertain to the respondent. Portions of the report, exhibits, and enclosures may be withheld from a respondent only as required by security classification or for other good cause determined by the appointing authority and explained to the respondent in writing.

	b.  Provides that when adverse administrative action is contemplated against the respondent, based upon information obtained as a result of an investigation or board conducted pursuant to this regulation, the appropriate military authority
must as a minimum 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.  The person must be given a reasonable opportunity to reply in writing and to submit relevant rebuttal material.

14.  Army Regulation 623-3 prescribes the policies and tasks for the Army's Evaluation Reporting System.

	a.  Paragraph 1-4(10) states that referred reports are provided to the rated Soldier for acknowledgment or comment before being sent to HQDA.  Commanders will ensure the rated officer understands their comments do not constitute an OER appeal or request for a commander's inquiry.

	b.  Paragraph 1-9 states Army evaluation reports are assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army Officer Corps.  Performance will 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 as explained in the governing pamphlet.  Consideration will be given to the following:

* the relative experience of the rated Soldier
* the efforts made by the rated Soldier
* the results that could reasonably be expected given the time and resources available

	c.  Paragraph 1-9 also states potential evaluations will be performance-based assessments of rated Soldiers of the same grade to perform in positions of greater responsibility and/or higher grades.  Assessment of potential will apply to all officers, regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty; this assessment is continually changing and is reserved for HQDA.

	d.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to 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.

	e.  Paragraphs 6-3 and 6-4 state 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.  However, in these after-the-facts cases, this paragraph is not intended to be a substitute for the appeals process which is the primary means of addressing errors and injustices after they have become a matter of permanent record.

	f.  Paragraph 6-11a states the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

15.  Army Regulation 600-8-24 (Officer Transfers) provides that the BOI's purpose is to give the officer a fair and impartial hearing determining if the officer will be retained in the Army.  Through a formal administrative Army Regulation 15-6 investigation and this regulation, the BOI establishes and records the facts of the Respondent's alleged misconduct, substandard performance of duty, or conduct incompatible with military service.  Based upon the findings of fact established by its investigation and recorded in its report, the BOI then makes a recommendation for the officer's disposition, consistent with this regulation.  The Government is responsible to establish, by a preponderance of the evidence, that the officer has failed to maintain the standards desired for their grade and branch.  In the absence of such a showing by the Government, the board will retain the officer.  However, the respondent is entitled to produce evidence to show cause for his retention and to refute the allegations against him.  The Respondent's complete OMPF will be entered in evidence by the Government and considered by the BOI.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by removing the OER for the rated period 3 October 2010 through 8 May 2011 from his OMPF because a BOI absolved him of the misconduct.
2.  The subject OER for the period 3 October 2010 through 8 May 2011 is a change-of-rater report.  It was a referred report signed by the applicant on 
19 May 2011.  The derogatory portions of the OER are:

	a.  Part IVa shows a "NO" entry for Integrity.

	b.  Part V shows the rater marked the box indicating "Satisfactory Performance, Promote."  The rater's comments included the following statement:  the applicant's personal integrity was called into question by his failure to adhere to establish force protection standards and by having an inappropriate relationship contrary to expectations of an officer of his rank.

	c.  Part VII contains the entry "Fully Qualified."  However, the applicant's potential is rated "Below Center of Mass – Retain."  The senior rater stated the applicant possessed the requisite skills, competence and aptitude to excel.  His official actions while leading the Aviation Technical Assistance Field Team Colombia was superb.  However, his personal conduct has not lived up to the highest traditions of the United States Army and fell short of the behavior expected of a commissioned officer.

3.  The rater and senior rater made no mention of the Army Regulation 15-6 investigation as the supporting evidence of the comments and ratings discussed in the preceding paragraph.  There is no available evidence showing that these comments did not represent the considered opinion and objective judgment of the rating officials at the time of preparation.

4.  The applicant admitted in his referral comments to the subject OER that the Army Regulation 15-6 had been submitted on 29 April 2011 with its findings and recommendations.  Accordingly, this investigation was then closed.  There are no regulatory provisions for appeal or rebuttal of an Army Regulation 15-6 investigation.  However, there are provisions for providing a copy of the Army Regulation 15-6 to the applicant for the purpose of preparing an appeal or rebuttal to any subsequent adverse action(s) that may result from the findings of an Army Regulation 15-6 investigation.

5.  There is no evidence showing the applicant ever requested a commander's inquiry concerning the derogatory remarks and ratings in the subject OER.

6.  In 2012 the HRC initiated action to eliminate the applicant from the Army due to misconduct, moral or professional development and the subject OER.  A BOI convened in February 2013 and determined that the applicant should be retained in the service based on finding the investigation was incomplete and conclusions that he did not commit the stated misconduct.
7.  In September 2013, the OSRB considered, for a second time, the applicant's request to remove the subject OER from his OMPF.  The applicant contended that he was absolved of the misconduct by the BOI; therefore, the derogatory remarks on the subject OER were now factually incorrect.  He further contended the OER was based on a flawed investigation.  The commanding general agreed and recommended it should not adversely affect his ability to serve.  The OSRB determined that the applicant's contentions were without merit.

8.  The governing regulation for the operation of a BOI clearly states the BOI is limited to making a determination whether to retain or eliminate the officer from the service.  The Government is responsible to establish, by a preponderance of the evidence, that the officer has failed to maintain the standards desired for their grade and branch.  In the absence of such a showing by the Government, the board will retain the officer.  In the applicant's case, it appears the available evidence against him at the BOI did not rise to a level to support his elimination.  However, this does not mean he did not commit any or all of the misconduct charged, only that it did not rise to a "preponderance of the evidence."  Accordingly, the BOI had to retain him in the service.

9.  There are no provisions in the governing regulation to authorize the BOI to absolve an officer of any misconduct, or to direct removal of any document from the OMPF.

10.  Before an OER may be removed from the OMPF, there must be clear and convincing evidence showing it contains a material error, is inaccurate, or is unjust.

11.  The subject OER is presumed to be administratively correct, to 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.  The applicant has not provided clear and convincing evidence of a strong and compelling nature to overcome this presumption of regularity.

12.  In view of the above, the applicant's request should be denied.

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)                                         AR20140015121



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ABCMR Record of Proceedings (cont)                                         AR20140015121



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