IN THE CASE OF: 

		BOARD DATE: 15 September 2015

		DOCKET NUMBER:  AR20150005805 


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 relief for cause (RFC) Officer Evaluation Report (OER) from his Official Military Personnel File (OMPF).

2.  The applicant states:

	a.  He has spent the last 18 months defending his record of service against a grossly unfair "15-6 investigation" and RFC OER.  The investigation was conducted by Brigadier General (BG) J___ C__, a toxic leader with severely damaged creditability, who was subsequently fired for abusive conduct in a story which made the front page of the Army Times.  His investigation report contains significant factual and legal errors and should not be used as a basis for judgment against him.

	b.  In the disposition of his case, the Army fundamentally failed to follow its own governing regulations, specifically Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) and AR 623-3 (Evaluation Reporting System).  As a matter of regulatory oversight, due process and fairness, the applicant's exemplary record should be restored.

	c.  AR 623-3, Chapter 4-14, paragraph 1, states the Evaluations Appeals Board is delegated to take "final action" on evaluation appeals.  In October 2014, the Evaluation Appeals Board (Officer Special Review Board (OSRB)) voted unanimously to remove the RFC OER from his records due to lack of due process and failure to file the general officer review memorandum as required by AR 623-3, Chapter 2-17, section c.  This should have been the final disposition in his case.  However, in December 2014, the Deputy Assistant Secretary of the Army Review Boards (DASA-RB) usurped the regulatory authority of the OSRB and overruled the Board in direct contradiction of the Army regulation, which states that the OSRB is the ultimate authority on evaluation appeals.  The DASA has no regulatory authority to overrule the OSRB.  Therefore, the RFC OER should be removed from his OMPF.

3.  The applicant provides copies of:

	a.  An Abbreviated Timeline of Events.

	b.  DA Form 67-9 (Officer Evaluation Report) (OER) for the period 13 October 2012 through 23 September 2013, with his rebuttal.

	c.  Captain (CPT) A__ Incident Timeline.

	d.  His DA Form 2823 (Sworn Statement), dated 10 January 2013.

	e.  Email notes, dated 14 and 15 January 2013, concerning the counseling of CPT A__.

	f.  Memorandum for Record (MFR), subject:  Incident Statement, dated 
6 September 2013, from Sergeant First Class (SFC) S_____ A. L____, Noncommissioned Officer in Charge (NCOIC), Patient Administration Division, McDonald Army Health Center, Fort Eustis, Virginia.

	g.  MFR, subject:  Incident Statement, dated 6 September 2013, from Ms. E____ M________-B___, Supervisor, Outpatient Records Section, McDonald Army Health Center.

	h.  MFR, dated 10 January 2013, from Ms. E____ M________-B___.

	i.  Sworn statements from First Sergeant (1SG) D_____ N____, dated 
10 January 2013, 16 January 2013, 28 February 2013, and 9 September 2013.

	j.  Alpha Company, Warrior Transition Unit, Fort Eustis, Virginia, memorandum, subject:  Standard Operating Procedure (SOP) for Soldier in Transition Reassignment Process, dated 1 August 2012. 

	k.  Medical Department Activity memorandum, subject:  No Contact Order ref: CPT A____ A__, dated 9 September 2013.

	l.  His OERs for the periods 30 March 2012 through 12 October 2012, 5 May 2011 through 29 March 2012, and 2 May 2010 through 1 May 2011.

	m.  Sworn statements from LTC J______ J. S___, dated 28 June 2013 and 
3 July 2013 

	n.  His sworn statement, dated 28 June 2013.

	o.  Sworn statement, dated 16 July 2013, from Ms. G____ M____.

	p.  Sworn statement, dated 11 July 2013, from Mr. I__ C____.

	q.  DA Form 2823,dated 8 July 2013, from CPT C_____ L. H___.

	r.  Sworn statement, dated 27 June 2013, from Colonel (COL) D_____ W____.

	s.  Statement from Lieutenant Colonel (LTC) D___ M. G____.

	t.  Headquarters, U.S. Army Medical Command, memorandum, subject:  Memorandum of Reprimand — Filing Determination, dated 11 September 2013.

	u.  Headquarters, U.S. Army Medical Command, memorandum, subject:  Relief for Cause, dated 23 September 2013.

	v.  Officer Special Review Board (OSRB) Record of Proceedings, Docket Number AR20140005715, dated 16 October 2014.

	w.  Army Review Boards Agency memorandum, subject:  Appeal of OER, AR20140005715, dated 4 December 2014.

	x.  Army Times article, dated 12 March 2015.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army (RA) Medical Service Corps CPT.  At the time of the incident and RFC OER he was the Medical Company Commander, McDonald Army Health Center.  CPT A__ was the supervisor of the Outpatient Records Section.

2.  The applicant became concerned about CPT A__'s welfare and the safety of others after she had a violent outburst on 10 January 2013.

3.  On 24 June 2013, The Surgeon General, Lieutenant General (LTG) P_______ D. H_____, appointed BG J___ M. C__, as an investigating officer (IO) under the provisions of AR 15-6 to conduct an informal investigation into the allegations raised by CPT A__ on 17 June 2013 that her chain of command treated her inappropriately, demeaned her, and failed to provide her adequate support following her disclosure, in January 2013, of a sexual assault committed against her son by a family member in 2012 and against her by another service member shortly after her entry onto active duty. 

4.  The IO completed the investigation and found, in part, that:

	a.  CPT A__'s command did not appropriately report her disclosure of sexual assault on 10 January 2013, as required by Department of Defense (DoD) and Army Regulations when she disclosed to the applicant, her Company Commander, that she was sexually assaulted in the past.

	b.  CPT A__'s command did not take all actions required by DoD and Army policy to support her and minimize negative outcomes following her disclosure of sexual assault.  The actions taken by the command were not consistent with providing "sensitive care and support" and in many ways "re-victimized" her by not demonstrating leader empathy and concern.  The command failed to provide adequate oversight to ensure she received sensitive care and concern from the Medical Department Activity (MEDDAC) staff.

		(1)  There is no evidence that COL H_______, MEDDAC Commander, ever talked to CPT A__ to personally express his care and concern and/or demonstrate empathy for her situation and condition.

		(2)  In lieu of support, the applicant counseled CPT A__ four times over a seven-day period.  The counselings placed several restrictions on CPT A__, including:  (1) a no contact order for three staff members of the Patient Administration Division (PAD) section, (2) no access to McDonald Army Health Center without prior authorization from the applicant, (3) restricted traveling radius of 75 miles, (4) required to notify the applicant 48 hours prior to scheduling all appointments, and (5) authorization from the applicant before seeing or contacting the Commander or the Deputy Commander for Administration (DCA).

	c.  There is no evidence that the leadership committed any deliberate acts intended to demean CPT A__ for her disclosing these sexual assaults.


	d.  CPT A__ was not treated with dignity and respect by her command.

		(1)  Although she disclosed the sexual assault to the applicant, her Company Commander, on 10 January 2013, he continued to focus on her indiscipline and did not take any action to ensure her needs were being met.

		(2)  The applicant placed undue restriction on her movement and required authorization before she could enter the Health Center to seek care or talk to the MEDDAC Commander and DCA.

		(3)  The applicant recommended to the Hospital Commander that CPT A__'s computer access be taken away.

		(4)  There is no evidence that CPT A__ violated any privacy or "HIPAA" rules and no reason was provided as to why her access was removed.

		(5)  Email access was taken away from CPT A__ when she was moved to the Medical Company on 14 January 2013.  There was also a 
75-mile radius restriction placed on her movement.

		(6)  Both CSM G______ and the applicant were focused on addressing violence in the workplace, not the alleged sexual assault.

		(7)  The applicant's concern about violence in the work place was the reason he required CPT A__ to get his authorization before attempting to see the Hospital Commander.  

		(8)  The applicant acknowledged that CPT A__ never threatened the MEDDAC.  He noted he always approved her requests to enter the Health Facility to receive care, but despite his concern about the safety of others, he did not require CPT A__ be escorted to her appointments.  This calls into the question the intent of the restrictive orders.

	e.  CPT A__'s transfer to A Company, Warrior Transition Command was appropriate and in accordance with Army regulations.

	f.  The evidence supports the contention that the actions taken by CPT A__'s command following her disclosure of sexual assault exacerbated her behavioral condition.  The actions were unnecessary and inappropriate.

	g.  Northern Regional Medical Command (NRMC) did take all actions required by DoD and Army policy to support CPT A__ and minimize negative outcomes after becoming aware of her disclosure of sexual assault.

5.  The IO recommended, in part, that the applicant's actions did not constitute misconduct and he should not be subject to Uniform Code of Military Justice (UCMJ) action.

	a.  His actions should be handled administratively and he should be given a general officer memorandum of reprimand (GOMOR).

	b.  His temporary suspension should be converted to permanent relief for cause from command if, upon reviewing any GOMOR rebuttal, a determination is made to file the GOMOR in his OMPF.

6.  In closing, the IO indicated that the applicant must bear responsibility for his actions.  He caused undue duress in CPT A__ by not recognizing the significance of her disclosure of sexual assault and in restricting her movement to appointments in the medical facility.  He did not seek appropriate guidance in crafting counseling statements, although he did consult with his legal advisor prior to issuing the order.  Intentionally or not, the no-contact order put CPT A__ at a significant disadvantage.  His actions of escorting CPT A__ to the WTU, an action not hitherto performed for other Soldiers being transferred to the WTU, reinforced her assertion that she was not a valued member of the MEDDAC team.  The fact that the applicant did not receive mentoring or appropriate supervision was a mitigating factor in this case, but did not excuse his poor judgment, which called into question his capacity for future high-level command positions.

7.  On 21 August 2013, The Surgeon General approved the IO's findings and recommendations that pertained to the applicant. 

8.  In a Headquarters, U.S. Army Medical Command, memorandum, subject: Relief for Cause, dated 23 September 2013, the applicant was notified by LTG H_____, that under the provisions of AR 600-20 (Command Policy), paragraph 2-14, he was relieved of command of the Medical Company at McDonald Army Health Center.  LTG H____ indicated she was taking this action because the applicant failed to treat an officer with dignity and respect after she reported being sexually assaulted.  She further directed the applicant's rating chain to prepare the RFC OER in accordance with AR 623-3, paragraph 3-55. 

9.  The applicant received a RFC OER for the period 13 October 2012 through 23 September 2013.  His rater was the Deputy Commander for Administration, a LTC, and his senior rater (SR) was the Commander, a COL.  The contested OER shows his rater and SR signed the report on 9 October 2013.  It also shows the following entries:

	a.  In part IV (Performance Evaluation – Professionalism (Character)) the following entries are noted in:

* part IVa (Army Values) the rater placed an "X" in the "No" block for "Respect" and "Duty"
* part IVb, subsection b.3 (Actions (Leadership) – Influencing), the rater placed an "X" in the "No" block for "Decision-Making" 

	b.  In part V (Performance and Potential Evaluation (Rater)) the rater placed an "X" in the "Unsatisfactory Performance – Do Not Promote" block and entered the following remarks in Part V:

		(1)  In part Vb the rater entered in part:  "Though [the applicant] had success in command, he is being relieved of command as directed by The Surgeon General for failure to treat an officer with dignity and respect and not providing support to a service member in his unit after receiving a report of sexual assault."  

		(2)  In part Vc the rater entered:  "Not recommended for promotion."

	c.  In part VII (SR), the SR placed an "X" in the "Do Not Promote" block.  Part b shows "Below Center of Mass Retain."  The SR entered in part the following remarks in part VIIc:  "Unfortunately his tenure ends after a 15-6 investigation concluded that he failed to take proper action and provide appropriate support for a Soldier who reported sexual assault.  The report also concluded [the applicant] failed to treat the officer with dignity and respect.  As a result The Surgeon General directed that [the applicant] be relieved of his command.  Service member is not recommended for promotion or additional schooling."

10.  He appealed the RFC OER and on 16 October 2014 OSRB determined that there was sufficient evidence to warrant removal of the OER from the performance section of his OMPF.

11.  On 4 December 2014, DASA-RB rejected the OSRB's decision to remove the OER and instead directed it be retained in the performance section of the OMPF.  The DASA stated, "It is my judgment that clear and convincing evidence does not exist showing the AR 15-6 investigation failed to follow due process and demonstrated bias and prejudice against the applicant.  Further, there is insufficient evidence to show the narrative comments were in error or not the considered opinions of and objective judgments of the rating officials at the time of the report was rendered.  Absent this showing, I was unable to find a basis for removal of the OER." 

12.  In support of his request, the applicant provides:

	a.  His detailed analysis of how he handled the situation with CPT A__.

	b.  An Army Times article, dated 12 March 2015, which reports that BG C__ was suspended in September 2014 by LTG H_____, the Army Surgeon General and Commander of Army Medical Command.  The article further states, "After an Army investigation, it was determined that Brig. Gen J___ M. C__ failed to treat select subordinates with dignity and respect…While the investigation did not find a toxic command climate, nor did it find he failed to foster a healthy command climate, it did also determine that he failed to conduct a command survey as required by Army policy."

13.   AR 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System which includes the OER.  It also provides guidance regarding redress programs, including commander's inquiries and appeals.

	a.  Paragraph 1-9 states Army evaluation reports are assessments on 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.

	b.  Paragraph 3-2 defines the role of the rating officials.  Rating officials have the responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest, fair evaluations of the Soldiers under their supervision.  On one hand, they must give full credit to the rated individual for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, DA selection boards, and career managers can make intelligent decisions.

	c.  Paragraph 3-23 states that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  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).  Any verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's use of verified derogatory information.

	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.  Paragraph 6-11a states the burden of proof rests with the applicant 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.

	e.  Paragraph  4–12 (Army Special Review Board (ASRB)) states:

		(1) The ASRB operates within the guidelines established in this regulation. The board, which is comprised of senior officers and NCOs, evaluates and acts on evaluation report appeals. The president and assistant president for each
board, under the direct authority and supervision of the Army’s Director of Military Personnel Management, are delegated the authority to take final action on evaluation report appeals on behalf of HQDA.

		(2) Board proceedings are administrative and non-adversarial; the provisions of AR 15–6 do not apply. Although not bound by the rules of evidence for trials by court-martial or other court proceedings, the board does keep within the reasonable bounds of evidence that is competent, material, and relevant. 

	f.  Paragraph 6-11 provides 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.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 6-7 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.

14.  AR 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  This regulation states the Army policy is to ensure that unsubstantiated unfavorable information is not placed in personnel files or used for personnel decisions.  Additional objectives are to protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility and to provide a means to remedy injustices if they occur.  Paragraph 3-2 states that except as indicated in paragraph 3-3, unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement or to decline, in writing, to make such a statement.  This statement may include evidence that rebuts, explains, or mitigates the unfavorable information.  The issuing authority should fully affirm and document unfavorable information to be considered for inclusion in official personnel files.

15.  AR 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data.  A document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include the ABCMR.  Appendix B (Documents Authorized for Filing in the OMPF and/or interactive Personnel Electronic Records Management System (iPERMS), Table B-1 (Authorized Documents) states the DA Form 67-9 (Officer Evaluation Report) is to be filed in the performance section and DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers is to be filed in the restricted section of the OMPF.

16.  Title 10, U.S. Code, section 1552 (Correction of military records) provides that the Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice.  Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department.

17.  The Army Review Boards Agency operates the OSRB under the supervision of the DASA.  The DASA retains the authority to overrule decisions of the OSRB. The authority is established by the Secretary of the Army's 20 September 2013 memorandum for the Assistant Secretary of the Army (Manpower and Reserve Affairs)(ASA(M&RA)), subject:  Specific Delegation of Authority to the Assistant Secretary of the Army (Manpower and Reserve Affairs) to administer Component Boards of the Army Review Boards Agency and the ASA (M&RA)'s 1 October 2013 "memorandum for the DASA-RB, subject:  Re-Delegation of Authority, paragraph 6e of which states, in pertinent part, "I hereby re-delegate to you the authority to …to render final determinations on all officer and enlisted evaluation appeals…." 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the DASA usurped the authority of the OSRB in overruling that Board's decision to remove the RFC OER from his OMPF.  However, the DASA acted within the authority delegated to her from the Secretary of the Army through the ASA(M&RA).

2.  The applicant contends the IO was a toxic leader with severely damaged credibility, who was subsequently fired for abusive conduct in a story which made the front page of the Army Times.  The fact that the IO subsequently had problems of his own neither renders an otherwise properly conducted investigation defective nor absolves the applicant of his own lack of judgement.

3.  By regulation, to support removal, transfer, or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied 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.  

4.  After a comprehensive review of the evidence in the applicant's OMPF, the applicant’s contentions and arguments, and the evidence submitted in support of his application, other than his dissatisfaction, the applicant did not show, by clear and convincing evidence, that the contested OER contains a material error, inaccuracy, or injustice, that his OER should be removed or that the 
DASA-RB usurped the OSRB's authority.  

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 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)                                         AR20090007349



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ABCMR Record of Proceedings (cont)                                         AR20150005805



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