IN THE CASE OF:  	  

		BOARD DATE:  22 September 2015	  

		DOCKET NUMBER:  AR20150010229 


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 the removal of the Officer Evaluation Report (OER) covering the period 3 May 2012 to 11 July 2012 from his Official Military Personnel File (OMPF).  

2.  The applicant defers his comments to counsel. 

3.  The applicant allows counsel to submit documents in his behalf. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board recognize that the Board of Inquiry (BOI) was a more superior fact finding vehicle than the Army Regulation (AR) 15-6 investigation and the resulting referred OER and General Officer Memorandum of Reprimand (GOMOR) and grant his request for the removal of the OER covering the period 3 May 2012 to 11 July 2012 from the applicant’s Official Military Personnel File (OMPF).

2.  Counsel states, in effect, that the BOI results are more reliable than the OER and GOMOR that were derived from the AR 15-6 investigation because the BOI is an adversarial process which allows for the cross examination of witnesses and is a far superior method to get to the truth of a matter than merely to take an uncontested statement. 

3.  Counsel provides a six-page brief explaining his arguments.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving as a Regular Army Medical Service Corps major in Afghanistan on 15 May 2012 when an investigating officer (a lieutenant colonel) was appointed to conduct an informal investigation under the provisions of       AR 15-6 regarding the possible maltreatment of subordinates and alleged assault of a Soldier by the applicant.

2.  The results of the investigation are not present in the available evidence, however; the available evidence shows that the investigating officer obtained sworn statements from many Soldiers (officers and enlisted) during the course of the investigation and it is reasonable to presume that the investigating officer found the allegations against the applicant to be substantiated because on 2 June 2012, the applicant received a GOMOR for striking a noncommissioned officer (NCO) and creating a negative work environment. 

3.  The applicant submitted a rebuttal to the GOMOR in which he stated that he accepted full responsibility for his actions and made no excuses for what occurred.  He stated that his actions were a complete lapse in judgment and he realized that there must be consequences for his actions and he was prepared to accept whatever punishment the convening authority deemed appropriate.  However, he requested clemency and requested that the GOMOR be filed locally and not in his OMPF.

4.  On 11 July 2012, the applicant was relieved for cause and was issued a relief for cause OER covering the period 20120503 – 20120711.

5.  In Part IVa, under Army Values, the applicant received “No” ratings under “Honor” and “Respect”.

6.  In Part IVb, under Leader Attributes/Skills/Actions the applicant received “No” ratings under “Mental”, “Emotional”, “Interpersonal”, “Motivating”, and “Building”.

7.  In Part V, under “Performance and Potential Evaluation” the applicant received a rating of “Unsatisfactory Performance Do Not Promote” from his rater (a colonel).  His rater commented that the applicant struggled with developing appropriate interpersonal skills required of his rank and position and employing effective communication skills.  As such, he failed to live up to the Army values and many of the leadership attributes and behavioral standards expected of a field grade officer.  He also stated that the applicant was not suitable for command.

8.  In Part VII, his senior rater (SR) gave him a “Do Not Promote” rating and placed him “Below Center of Mass” on his SR profile.  He indicated in his comments that the applicant’s intolerable actions in maltreating his subordinates and striking a senior NCO demonstrates that he has failed to maintain his military bearing during the crucible of combat and thus was relieved of his duties.  He should be retained only to meet the needs of the Army and should not be further promoted.   The OER was adverse and as such was referred to the applicant. 

9.  As a result of the applicant having been issued a GOMOR and a relief for cause OER, the applicant was required to appear before a board of officers to show why he should not be eliminated from the Army.  Accordingly, a board of inquiry (BOI) was convened at Fort Lee, Virginia and on 15 August 2014 the BOI found that the allegation of substantiated derogatory information that resulted in his receiving a GOMOR and referred OER was not supported by the preponderance of the evidence.  The board recommended that the applicant be retained in the Army.  The recommendation of the BOI was approved on             9 October 2014.

10.  On 19 November 2014, the applicant submitted an appeal to the Department of the Army Suitability Evaluation Board (DASEB) requesting that the GOMOR be removed from his OMPF.  He requested through counsel, that the board recognize that the BOI was a superior fact finding vehicle than was the AR 15-6 investigation and the consequent referred OER and GOMOR. 

11.  After reviewing all of the evidence and arguments, the DASEB determined that the applicant had not provided clear and convincing evidence to show that the GOMOR was rendered in error or was unjust or untrue and voted to deny his request to remove the GOMOR from his OMPF on 28 April 2015.

12.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures and serves as the authority for the preparation of the OER.  It provides that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer is presumed to be administratively correct and to have been prepared by the properly designated rating officials at the time of preparation.  Each report must stand alone.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER 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 at the time the OER was prepared.

13.  Army Regulation 623-3 also provides that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and supporting documents have been carefully considered and appear to lack merit. 

2.  While it is understandable that the applicant would like the Board to accept the findings of the BOI as a more reliable fact-finding method than the AR 15-6 investigation and remove the contested OER and GOMOR from his OMPF because the BOI found in his favor, the fact of the matter is that the BOI was tasked to determine if the applicant should be retained in the service, not to determine whether the allegations in GOMOR and OER were substantiated. 

3.  Additionally, the AR 15-6 investigation was conducted on the ground in the theater during the period in which the incidents were occurring and were fresh in the minds of the persons involved.  The BOI was conducted 2+ years after-the-fact by individuals who were not present when the investigation was conducted and the decisions made by the chain of command were made.

4.  It is also noted that at the time the applicant submitted his rebuttal to the GOMOR, he accepted full responsibility for his actions and made no excuses for what occurred.

5.  While the applicant may not agree with the decision of his chain of command, he has failed to show through convincing evidence that the contested report does not reflect the objective evaluation of his rating chain at the time and that it does not properly reflect the rating chain’s evaluation of his performance and potential during the period in question.

6.  Accordingly, the contested report appears to represent a fair, objective, and valid appraisal of his performance and potential during the period in question.  In view of the foregoing, there is no basis for granting the applicant's request.

 




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)                                         AR20150010229





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ABCMR Record of Proceedings (cont)                                         AR20150010229



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