IN THE CASE OF:	  

		BOARD DATE:	  2 July 2015

		DOCKET NUMBER:  AR20150001832 


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.  This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the U.S. Court of Federal Claims.  The court directs the ABCMR to reconsider the applicant's request for: 

* the removal from his Official Military Personnel File (OMPF) of an Officer Evaluation Report (OER) for the period 29 June 2002 through 23 January 2003, hereafter referred to as the contested OER
* identifying this period as nonrated time
* consideration by a Special Selection Board (SSB) for promotion to major (MAJ) under the Fiscal Year 2006 (FY06) promotion criteria
* any pay and allowances due if he is selected for earlier promotion to MAJ as a result of an SSB 

2.  The applicant filed a complaint in the U.S. Court of Federal Claims on 2 January 2014.  The Court issued an order on 26 January 2015.  The order stated the applicant's action was remanded to the ABCMR so the Board may have an opportunity to revisit and articulate in detail its rationale on the subject matter.  The Board's decision, after affording the applicant the opportunity to amend his application for relief, submitted to the ABCMR on 4 December 2009 to include the revocation order, shall consider:

* the applicant's claim that the revocation order, dated 22 January 2003, shows that the contested OER was substantially inaccurate and should be removed from his OMPF
* any claims of bias and retaliation made by the applicant
* whether an SSB would offer the applicant appropriate relief if the contested OER is removed from his OMPF and this period of service is noted as unrated
   
3.  The applicant provides all arguments and evidence through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request for the removal from his OMPF of the contested OER for the period 29 June 2002 through 23 January 2003, this period be identified as nonrated time, consideration by an SSB for promotion to MAJ under the 2006 promotion criteria, and entitlement to any pay and allowances due if his DOR to MAJ is adjusted as a result of an SSB. 

2.  Counsel states:

	a.  The applicant enlisted in the Army National Guard (ARNG) in 1987.  While serving in the ARNG, he worked full time and studied to complete a master's degree in Administration and Supervision in Education and eventually pursued his master's degree in Architecture.  With strong encouragement by a colonel (COL), he was commissioned as an officer in 1994.

	b.  His record of service, with the one exception that is the subject of this case, is impeccable.  The evaluation of his competency, leadership, loyalty, and commitment to this country and his Soldiers is notable for overwhelming positive remarks.  He received not only high marks and accolades, but in addition numerous letters of commendation, medals, awards, and public recognition as an outstanding citizen and officer.  His reputation among fellow Soldiers and officers is that he has the highest moral standards and work ethic.  He is known as a zealous stickler who adheres to standards, follows regulations, and does things by the book.

	c.  On or about October 2002, the applicant was assigned as the Company (CO) Commander (CDR), 739th Engineer (EN) CO, Granite City, IL.  When he arrived at the unit, he found a broken unit in need of massive reform and order.  Soldiers had deserted, supplies were not accounted for, and the physical condition of the buildings, equipment, facilities, and grounds were deplorable.  An investigation into the conditions of the unit concluded it was vastly unprepared, mismanaged, and unfit.  The morale of the Soldiers in the unit was very low.  Many had not been paid and no one was held accountable.  Requests were ignored and rules broken.  There was a vacuum of leadership.

	d.  One of the issues the applicant inherited was a female Soldier who had been wrongfully demoted.  After a congressional inquiry was completed in October 2002 wherein she was promoted back to her rightful position, he sent the appropriate DA Form 4187 (Personnel Action) to the battalion (BN) CDR four times for processing but nothing happened.  Excuses were given by the BN that the DA Form 4187 was "lost" or "not received," along with other questionable explanations.  

	e.  In late 2002, the 739th EN CO was notified it would be mobilized to support the initial phases of Operation Iraqi Freedom (OIF).  On or about 6 January 2003, the applicant and roughly 120 Soldiers from the unit were at the Soldier Readiness Processing Center, Fort Snelling, MN, to take care of legal, medical, and financial issues.  The applicant personally escorted this particular female Soldier to the Inspector General's (IG) office to address what appeared to be intentional stalling on the part of the BN.  On or about 10 January 2003, she received her promotion order.

	f.  On 12 January 2003, the applicant sent an email to the higher CDRs [i.e. BN and Group (GP) CDRs] to update his reports on several serious issues that needed to be addressed in order to safely and successfully deploy.  On 15 January 2003, he received a reply that told him to "stop whining" and to keep his recommendations to himself.  Prior to this, he had not received any negative communication in response to status reporting.

	g.  After approximately 3 months of documented attempts to address blatant disregard to Army regulations (AR), maltreatment of Soldiers and racial inequities, among other things, the 88th Regional Readiness Command (RRC) appointed an investigating officer (IO) and a report of survey (ROS) was completed.  The final report of the investigation of the RRC was not shared with the applicant; however, he believed the BN CDRs were faulted for their negligence.  The ROS concluded the two previous CO CDRs, two supply sergeants, and a unit administrator should be held accountable for the deplorable conditions of the unit.

	h.  At that time, the 739th EN CO consisted of approximately 184 Army Reserve personnel and more than $20 million in equipment.  The applicant was responsible for the training, mobilization, and mission accomplishment, as well as accountable for all assigned equipment as the company property book officer.  He worked long hours in an attempt to get his unit properly manned, trained, and equipped for it mission in the Iraq war.

	i.  His unit was tasked with building bridges for the transport of Soldiers and equipment; a task that involved working in January's icy water.  However, his Soldiers were not supplied with basic, necessary gear such as gloves, proper tools, or cold-weather outerwear.  There was no accurate inventory of equipment and supplies and things were shoved in dirty storage units that contained trash and debris.  One key person who was supposed to be helping the applicant, blatantly shirked all responsibility as he counted down the days to his retirement leaving young men and women exposed to a dangerous environment even before they left to fight a dangerous war in the Middle East [i.e. Southwest Asia]. The unit was scheduled to be mobilized at Fort Leonard Wood, MO, and then deploy to Iraq.

	j.  On 21 January 2003, a key noncommissioned officer (NCO) working with the applicant received reassignment paperwork.  Because the NCO's name appeared on all the documents that were traveling with the unit to Iraq, voluminous paperwork had to be redone as a result of his transition.  Also on 21 January 2003 and close to midnight, approximately 100 Soldiers assigned to the unit and scheduled to mobilize under the applicant's command arrived to the unit.

	k.  On 22 January 2003, a new supply person finally arrived to help the applicant properly account for supplies, machinery, equipment, tools, uniforms, and everything else needed to deploy.  That day families of the new, young Soldiers arrived with questions and seeking information from the applicant as the CDR.  In addition, he had to assign the new personnel to various platoons and organize various groups to complete certain tasks.

	l.  Importantly, for the first time, on 22 January 2003, Lieutenant Colonel (LTC) MD, the BN CDR, and COL JD, the GP CDR showed up unannounced and immediately took over the applicant's formation.  While in formation and elsewhere, LTC MD and COL JD made several unwarranted, derogatory, demeaning, profanity-ridden comments about and to the applicant in the presence of the unit personnel.  Their conduct was contrary to military protocol, retaliatory, and undermined the authority and credibility of the applicant in the eyes of his Soldiers at a critical time.  As they were leaving, they both unfairly blamed the applicant for the poor shape of the unit and its lack of readiness as he wasn't "engaged."  COL JD then asked the applicant why he shouldn't fire him and in response the applicant said he did not know how to answer that question.

	m.  On 22 January 2003, unbeknownst to the applicant, LTC MD and COL JD revoked his mobilization order without telling him.  On 23 January 2003, some of his staff began doing things without his permission and contrary to his command. He believed the errant conduct was because of how he had been treated by LTC MD and COL JD the day before.  After one such incident, when LTC MD showed up, the applicant asked to speak to him privately.  The men went into an office and the applicant told LTC MD that he could not work for him if he continued to disrespect him with profanity or words to that effect.

	n.  On 23 January 2003, COL JD abruptly relieved the applicant from his command in violation of AR 15-185 (ABCMR) [i.e. AR 15-6 (Procedures for IO and Board of Officers)] later claiming falsely that the applicant asked to be relieved from his command.  He was ordered to not mobilize with the 739th EN CO but instead report to a maintenance unit in Wood River, IL, to be detailed under a CDR of a lower rank.  

	o.  LTC MD as his rater and COL JD as his senior rater completed the contested OER for the period covering 29 June 2002 through 23 January 2003 that contained false and damaging information that was not processed according to ARs.  After only observing the applicant once, not coincidently after he escorted a female Soldier to the IG's officer to seek justice and after he complained about the lack of preparedness and irregularity of the 739th EN CO, they both cast harsh judgment stating he "demonstrated lack of professional and moral obligation to duty" and that he had requested to be relieved from his duties as commander and from deployment.  After just one observation, LTC MD and COL JD wrote that he "displayed poor judgment and an inability to make decisions" and that he "lacked interpersonal skills."  

	p.  The OER was rejected by the U.S. Army Human Resources Command (HRC) repeatedly for 2 years because of deficiencies but was accepted at HRC on 26 June 2005.  His relief for cause (RFC) was elevated to a show cause board which held a hearing on 31 July 2004.  At the 31 July 2004 hearing, LTC MD and COL JD were questioned under oath and subject to cross examination.  The unanimous findings by the board completely exonerated the applicant.

	q.  The applicant sought a CDR's Inquiry that was finally performed after approximately 4 years, the result of which was a recommendation that the contested OER be deemed invalid and removed from his file.  He appealed the OER to the Officer Special Review Board (OSRB), Army Review Boards Agency (ARBA), on the basis that is was procedurally and substantively deficient.  Specifically, he alleged and offered clear and convincing evidence that the OER was not properly or timely signed off by a general officer (GO) under the provisions of AR 623-105 (Officer Evaluation Reporting System).  There was no adequate investigation of the allegations contained in the OER to determine the truthfulness of the statements it contained.  The OER was not properly profiled at HRC, it contained material misrepresentations of facts as determined by the show cause board finding, he was not provided any counseling, it demonstrated personal bias and retaliation for his reports to his chain of command, and his substantive and procedural due process rights were violated. 

	r.  After contacting LTC MD and COL JD for their explanations as well as conducting unspecified research, the OSRB denied his appeal and found he had not overcome the presumption of regularity.  The OSRB did not address his credible claim that he was the object of retaliation and reprisal as evidenced by their abrupt harsh judgment of him immediately following his report of regulatory violations and assisting a Soldier who also accused the unit of wrongdoing.  

	s.  He then appealed to the ABCMR.  The Board acknowledged several administrative errors and stated he underwent a show cause board which found insufficient evidence to support the negative comments contained in the contested OER and recommended he be retained.  The board did not say the negative comments were false and no further information concerning those findings was available to the Board.  Without such information, the weight of the evidence supports the determination of the rater, senior rater, and the first GO in the chain of command, all of whom contend the applicant did not perform to standard and lacked leadership and sound judgment.

	t.  The ABCMR denied his requested relief on the basis he had a contentious relationship with his superiors, who he had only met once, before being removed from his command.  The ABCMR found he told his superiors that he could not serve with them and they obliged him by relieving him of his command contrary to the findings of the show cause board and contrary to the order revoking his deployment order 1 day prior to the alleged comments.  The ABCMR did not address his credible claim that he was the object of retaliation and reprisal.

3.  Counsel provides Orders 03-022-00096, dated 22 January 2003:

4.  With his initial application the applicant provided:

* the contested OER with attachments
* three memoranda, dated between 23 August 2003 and 29 October 2009
* DA Form 1574 (Report of Proceedings by IO/Board of Officers), dated 3 October 2004
* OSRB OER Appeal Case Summary, completed 3 January 2008
* six OERs for the rated periods between 20 June 2006 and 2 May 2009
* Officer Record Brief (ORB), dated 14 January 2010
* an Interactive Personnel Electronic Records Management System list of documents
* an email

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 AR20090020836, on 18 November 2010.

2.  The applicant was serving as a first lieutenant in the U.S. Army Reserve (USAR) and entered active duty as a member of the Active Guard/Reserve (AGR) Program on 12 February 1999.  He was promoted to the rank of rank of CPT on 20 March 2001.  

3.  The ORB he provided, dated 14 January 2010, shows that on 16 September 2002 he was assigned as the CO CDR to the 739th EN CO, 687th Quartermaster (QM) BN, 303rd Ordnance (OD) GP, 88th RRC, Granite City, IL.

4.  Counsel provides Orders 03-022-00096, dated 22 January 2003, issued by Headquarters (HQ), 88th RRC, wherein Order 03B-017-010 pertaining to the mobilization of the applicant was revoked.  Order 03B-017-010 is not available for review with this case.

5.  On or about 21 January 2003, LTC MD and COL JD, the applicant's superior officers, visited the applicant's unit as it prepared for a deployment to Iraq.  On 23 January 2003, the applicant stated he could not work for COL JD because of conduct and comments made by COL JD that he found disrespectful.  On 23 January 2003, the applicant was relieved of his command and on 24 January 2003 he was assigned as the special projects officer to the 733rd Maintenance Detachment, Wood River, IL.  

6.  During the month of August 2003, he received the contested OER, a RFC OER which covered 4 months of rated time during the period 29 June 2002 through 23 January 2003 for his duties as an AGR CO CDR.  His rater was LTC MD, 687th QM BN CDR, and his senior rater was COL JD, 303rd OD GP CDR.  The OER shows the following entries:

	a.  In Part IVa (Performance Evaluation-Professionalism-Army Values), the rater placed an "X" in the "No" blocks for "Loyalty" and "Duty." 

	b.  In Part IVb (Performance Evaluation-Professionalism-Leader Attributes/Skills/Actions), the rater placed an "X" in the "No" blocks for "Mental," "Conceptual," "Tactical," "Decision Making," and "Executing."

	c.  In Part Va (Performance and Potential Evaluation), the rater placed an "X" in the "Unsatisfactory Performance-Do Not Promote" block.
	d.  In Part Vb (Comment on Specific Aspects of the Performance and Potential for Promotion), he entered the following comments, in part:

On 23 January 2003, [Applicant] demonstrated his lack of professional and moral obligation to duty.  He requested, from 303rd GP CDR, COL JD, that he be relieved of the duties and responsibilities as CDR, 739th EN CO.  He also requested relief from deployment with the unit. This conduct violates a.7 of the Core Army Values detailed in Part IV of this report.  [Applicant] did not focus on the tasks necessary to prepare his CO for deployment when it was alerted and mobilized.  [Applicant's] request to be relieved of command displays a lack of loyalty to his entire chain of command, which violates the Core Army Values.  [Applicant] displayed poor judgment and an inability to make decisions. He also demonstrated a lack of interpersonal and managerial skills in coordinating the actions of his officers and NCO's at the time of mobilization.  Such conduct is unacceptable from an officer.  [Applicant] does not possess the potential to serve effectively in the United States Army and should immediately be removed from the AGR program.

	e.  In Part VIIa (Senior Rater), the senior rater placed an "X" in the "Do Not Promote" block and entered the following comments, in part:

[Applicant] volunteered to be relieved of his command and was unable to carry out command duties.  I directed the RFC of the applicant with the approval of the 88th Regional Support Command Commanding General (CG).  [Applicant] could not initiate the required actions to mobilize the 739th EN CO.  [Applicant] lacks the leadership qualities necessary to lead Soldiers into a combat situation.  [Applicant] should not be considered for retention in the AGR Program.  A DA Form 67-9-1 (OER Support Form) was not received with this report due the circumstances necessitating the RFC.

7.  The contested OER was referred to the applicant for acknowledgement.  The OER indicates he did provide comments.  The rater's signature was dated 18 August 2003, the senior rater and applicant's signatures were dated 20 August 2003, and it appears it was initially forwarded to HRC in August 2003. The applicant subsequently submitted comments to the OER in a memorandum dated 25 August 2003.  Due to many administrative errors the OER was returned for corrections and was not finally accepted and processed by HRC until June 2005. 

8.  On 16 December 2003, by memorandum to the CG, 88th RRC, the applicant stated "I informed my commanders that I could not serve for them."  He further complained about his RFC and about a lack of resolution to issues raised during his assumption of command inventory/inspection during the December 2002 to January 2003 time period.  At that time, he did not request a CDR's Inquiry into the contested OER.

9.  On 31 July 2004, a board of officers convened at HQ, 88th RRC, to require the applicant to show cause as to why he should be retained in the Army.  The board convened at 0815 hours, finished gathering/hearing evidence at 1610 hours, and completed the findings and recommendations at 1833 hours on 31 July 2004.  The DA Form 1574 the applicant provided with his initial application to the ABCMR does not show the specifics of who the board heard testimony from, or what evidence was reviewed by/presented to the board. The DA Form 1574 shows the board found:

	a.  There was insufficient evidence to support a finding that the applicant displayed poor judgment and inability to make decisions; demonstrated lack of interpersonal and managerial skills in coordinating the actions of the officers and NCOs at the time of mobilization; requested to be relieved from his command in an impending deployment for war; or requested to be relieved from his command and/or failed to prepare his command for mobilization and deployment during a crucial time as his unit prepared for war.

	b.  There was insufficient evidence to support a finding that the applicant failed to report as ordered by his BN CDR to the 733rd Maintenance Detachment after his relief.  However, the board found that such failure to report was based upon advice by his Personnel Management Officer regarding the applicant's AGR status and financial concerns.  The board further found that such failure to report was only for the period 24 January to 10 February 2003 during which he reported to and did perform service at his old unit.  The approving authority subsequently corrected this finding from "insufficient evidence" to "sufficient evidence."

	c.  The board recommended the applicant be retained in the Army and reassigned to a unit not in the 303rd OD GP.

10.  On 3 October 2004, the approving authority, CG, 88th RRC approved the findings and recommendations of the board. 

11.  On 26 June 2005, by memorandum, the CG, 88th RRC, notified the applicant that he had completed a supplementary review of the contested OER as required by AR 635-105, and stated the OER was complete, correct as written, and required no further comments from him.  On 27 June 2005, the OER was added to his OMPF.

12.  On 8 August 2005, the applicant submitted an appeal of the contested OER to HRC on the basis of administrative and substantive error; specifically, he contended the RFC was not accomplished in accordance with AR 623-105, paragraph 3-50b, in that no GO approval was obtained, no formal/informal investigation was conducted, the contested OER was never processed by HRC prior to being added to his OMPF, and the OER contained false and inaccurate statements.

13.  In his OER appeal, he referenced an unspecified investigation directed by the CG, 88th RRC, after the applicant "documented attempts to explain blatant disregard to ARs, maltreatment of Soldiers, racial inequalities, and lack of care for Soldiers" in the 739th EN CO based upon his 3-month assessment of the unit. He stated he was identified as a suspect even though all incidents occurred prior to his assumption of command.  Also an ROS had been conducted and found two previous commanders, two previous supply sergeants, and a unit administrator accountable [for missing property].

14.  On 3 January 2008, the OSRB completed the applicant's appeal and the appeal was denied.  The board reviewed the applicant's contentions and all supporting documentation.  The rater and senior rater for the subject OER were contacted and both stated the applicant told them he could not work for them and requested he be relieved from his duties as commander.  The senior rater stated he contacted the CG, 88th RRC and received [verbal] GO approval to relieve the applicant based on his personal request to be relieved.  The OSRB also found: 

	a. The applicant's contention the contested OER did not have the approval from the first GO in the chain of command until 2 years after the end date was substantiated; however, the delay in getting the supplementary review was not sufficient to have the OER removed from his OMPF.  ARs required the written GO approval for the RFC of a CDR but GO approval is not mandated by regulation at the time the OER is prepared.  The CG, 88th RRC, did sign the OER memorandum on 26 June 2005, more than 2 years after the ending date.  The contested OER was rejected by HRC multiple times for administrative errors and lack of review and accepted at HRC on 27 June 2005.

	b.  His contention the contested OER was prepared without a completed formal or informal investigation to be factually correct but was not substantiated as AR 623-105 allows for but does not mandate an investigation, formal or informal, before completing an RFC OER.  

	c.  His contention the contested OER was never profiled at HRC was unsubstantiated as it was officially filed and profiled at HRC in June 2005.

	d.  His contention the information in the contested OER could not be submitted because it was not factual and contained false or inaccurate information of a substantive nature was not substantiated.  The OSRB found the applicant admitted telling his chain of command he could not work for them and, after reviewing the information in the OER and the materials submitted by the applicant, failed to find any evidence to support his claim of substantive inaccuracy.

	e.  His contention that there was no evidence of counseling was not substantiated as he had received verbal counseling about his duties and performance.

	f.  His contention that there was blatant personal bias demonstrated toward him was not substantiated as searches failed to find any record of an AR 15-6 investigation the applicant alleged had been conducted.  In addition, the Department of the Army IG (DAIG) was contacted and it was found the allegations of wrongdoing the applicant made against the chain of command had not been substantiated by the DAIG.

	g.  His contention the show cause board found the information in the contested OER to be untrue was not substantiated.  The show cause board stated there was insufficient evidence to support a finding that he requested to be relieved from his command and/or failed to prepare his command for mobilization during a crucial time; however, the OSRB did find evidence of a clear and convincing nature that he did request to be removed from command by saying he could not serve for his commanders.  The OSRB noted the purpose of the show cause board was to determine if an officer should be retained in the service; it did not investigate other documents or claims.  

15.  On 3 July 2007, he was notified by HRC that a FY06 DA Reserve Components (RC) Mandatory Selection Board convened on 12 March 2007 and considered him for promotion to MAJ; however, he was not selected.  In 2008, he was notified by HRC that again he was considered for promotion to MAJ by a DA RC Mandatory Selection Board and was not selected.

16.  On 25 November 2008, he submitted a memorandum to the CG, U. S. Army Reserve Command (USARC), requesting a CDR's inquiry into the contested OER.  He stated his original request for a CDR's inquiry was not honored.  He justified his current request after 5 years because he was a two time non-select for promotion to MAJ and was facing removal.  He stated, in part:
* he never asked to be relieved, but instead said, "Sir, I cannot work for you, if you continue to disrespect me with profanity"
* a show cause board found no proof to substantiate the negative entries made in the contested OER and recommended his retention
* he appealed his OER to the OSRB and the board denied his appeal
* the command he was relieved from was a priority force support package unit with broken readiness standards as a result of years of neglect by past leadership and had been designated a CG's Unit of Interest

17.  On 11 December 2008, he was honorably released from active duty and the AGR Program and transferred to the control of the USAR Control Group (Reinforcement).  He completed 9 years, 10 months, and 18 days of creditable active service during this period of service.  

18.  On 29 October 2009, the CG, USARC, advised that the CDR's inquiry was completed and found:

* between 2003-2005, the applicant sought assistance from multiple commands without success
* the contested OER was signed by the senior rater and the applicant on 20 August 2003 and referred to the applicant
* there was no written GO concurrence for relief until 26 June 2005
* the show cause board did not believe the rater and senior rater evaluation of the applicant and, therefore, recommended he be retained

19.  The CG's final determination was that, without GO approval of the RFC, the actions taken by the applicant's chain of command were considered "for all intents and purposes as a temporary suspension from assigned duties, rather than a final relief from command for cause."  The CG recommended submitting an appeal to the OSRB, ARBA.

20.  He was promoted to the rank of MAJ on 3 June 2010 and continues to serve in the USAR.

21.  AR 623-105 prescribes the officer evaluation function of the military personnel system and provides that an evaluation report accepted by HQDA and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It states requests that a report that has been accepted for filing in an officer’s record be altered, withdrawn, or replaced with another report will not be honored.  Exceptions are only authorized when information that was unknown or unverified when the report was prepared is brought to light or verified; and the information is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared.

22.  AR 623-105, chapter 6, contains the policies and procedures pertaining to managing the OER redress program and guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It states the burden of proof rests with the appellant.  To justify deletion or amendment of a report the appellant must produce evidence that clearly and convincingly establishes that the presumption of regularity should not be applied to the report under consideration and that action is 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.

23.  An OER is required when an officer is RFC regardless of the rating period involved.  RFC 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 or her performance of duty.  In this regard, duty performance consists of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards shown in Part IV, DA Form 67-9.  When completing an RFC OER the potential evaluation in Part Va, of the form must reflect "Do not promote" or "Other."  The report will identify the rating official who directed the relief and the official will clearly explain the reason for relief, in his or her narrative portion of the form.

24.  AR 600-20 (Army Command Policy) prescribes the policies and responsibilities of command, which include military discipline and conduct, and the Army Equal Opportunity Program.  It states, in part:

	a.  Commanders are responsible for everything their command does or fails to do.  However, commanders subdivide responsibility and authority and assign portions of both to various subordinates and unit members.  In this way, a proper degree of responsibility becomes inherent in each command echelon.  Commanders delegate sufficient authority to Soldiers in the chain of command to accomplish their assigned duties, and commanders may hold these Soldiers responsible for their actions.  Commanders who assign responsibility and authority to their subordinates still retain the overall responsibility for the actions of their commands.  Commanders must maintain good order and discipline to promote and safeguard the morale, well-being, and the general welfare of the personnel under their command. 

	b.  A commander who succeeds to any command or duty assumes the duties of his or her predecessor.  The successor will assume responsibility for all orders in force and all the public property and funds pertaining to the command.

	c.  When a higher ranking commander loses confidence in a subordinate commander's ability to command due to misconduct, poor judgment, the subordinate's inability to complete assigned duties, or for other similar reasons, the higher ranking commander has the authority to relieve the subordinate commander.  Relief is preceded with formal counseling by the commander or supervisor unless such action is not deemed appropriate or practical under the circumstances. 

	d.  Although any commander may temporarily suspend a subordinate from command, final action to relieve an officer from any command position will not be taken until after written approval by the first GO in the chain of command of the officer being relieved is obtained.  Any action purporting to finally relieve an officer from any command position prior to the required written approval will be considered for all purposes as a temporary suspension from assigned duties rather than a final relief from command for cause.  

25.  AR 710-2 (Supply Policy Below the National Level) states, in part, the commander ensures property accounting is complete and accurate and property is on hand, serviceable, and is safeguarded.  Commanders evaluate all supply operations using the standards of the Command Supply and Discipline Program and ensure that physical security inspections are conducted as required. The unit commander jointly conducts a 100 percent inventory of unit property during the change of command inventory. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the BN and GP CDRs were biased against him after only one meeting on 22 January 2003 and that is why they did a RFC OER on 23 January 2003; not because he asked to be relieved from command.  However, he stated when he took command the unit was a broken unit in need of massive reform and order and that for over 3 months he sent emails to the BN and GP CDRs documenting the unit issues.  While he may have inherited many problems in the unit, he placed the blame for the unit conditions all on his predecessors and did not appear to take any responsibly for any of the corrections they should have corrected after he took command.  

2.  Although the record is unclear as to the specifics of what transpired between the applicant and the BN/GP CDRs during his tenure as CO CDR, by January 2003 he had commanded the 739th EN CO for over 3 months.  It appears the BN and GP CDRs had contact with him during that period by phone and/or email, if not in person, on issues that were apparently still prevalent in the unit and that both CDRs perceived the deficiencies were a direct result of the applicant's poor judgment, inability to make decisions, that he demonstrated a lack of managerial skills in preparing the unit for deployment, and he was unable to carry out his command duties.  During the January 2003 visit the applicant stated he could not work for his senior rater; his senior rater obliged the applicant's request by relieving him from command.  This resulted in the issuance of the RFC OER.

3.  Contrary to counsel's contention that the show cause board completely exonerated the applicant, the DA Form 1574 showed that the board only found there was insufficient evidence to support the negative comments contained in the contested OER and recommended the applicant be retained.  It did not show the specifics of whom the board heard testimony from or what evidence was reviewed by/presented to the board and the board did not state the negative statements on the contested OER were false.  

4.  In addition, the OSRB subsequently reviewed all documentation submitted by the applicant, interviewed his rater and senior rater, and after a thorough review, the OSRB determined his contention that there was blatant personal bias demonstrated toward him by his raters was not substantiated.  The subsequent CDR's inquiry only found a procedural error in how the applicant's relief was handled.

5.  However, it also appears when the BN and GP CDRs arrived at the unit on 22 January 2003 they arrived with the intent to relieve the applicant from command as evidenced by the orders issued on 22 January 2003 revoking his mobilization orders.  In addition, although the senior rater may have obtained verbal approval from the first GO in the chain of command to relieve the applicant from his command duties, written approval was not obtained for his relief from command or RFC OER until almost 2 years after the receipt of the contested OER. 

6.  It is apparent the contested OER contained errors as it was initially sent to HRC in August 2003 and returned to the unit for correction.  Written concurrence from the CG, 88th RRC, was signed on 26 June 2005, and it was not profiled by HRC until 27 June 2005. 

7.  Given the 2-year delay by the CG in providing written approval of the applicant's relief, it would be appropriate to treat the period covered by the OER as non-rated time as the RFC OER was not official until the CG approved the action in writing.  

8.  Therefore, as a matter of equity, the RFC OER should be removed from his OMPF, this period should be treated as non-rated time, and his records should be sent to an SSB for consideration for promotion to MAJ.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant an amendment of the ABCMR's decision set forth in Docket Number AR20090020836, dated 18 November 2010.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  Removing the OER covering the period 29 June 2002 through 23 January 2003 from his OMPF and treating this period as non-rated time.

	b.  Submitting his records to an SSB for consideration for promotion to MAJ under the applicable criteria.

   c.  If selected for promotion by the SSB, further correcting his records by showing he met all the eligibility criteria for promotion selection effective the approved date of the promotion selection board promoting him to MAJ with the appropriate date of rank, paying to him any associated back pay and allowances as a result of his correction.

	d.  If not selected for promotion, notifying him accordingly.



      _______ _   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)                                         AR20150001832



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ABCMR Record of Proceedings (cont)                                         AR20150001832



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