PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           11 May 2000                   
	DOCKET NUMBER:   AR2000039373

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James M. Alward		Member	
	Mr. Christopher J. Prosser		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that the Officer Evaluation Report (OER) for the period 30 June 1994 through 15 February 1995 and the General Officer Memorandum of Reprimand (GOMOR) dated 9 February 1995 be removed from his records.  He further requests that his records be considered by a special selection board (SSB) for promotion consideration to the rank of lieutenant colonel.

3.  The applicant defers to counsel.  Counsel states that the applicant received the OER and GOMOR for misusing a government non-tactical vehicle (NTV) and providing a false or misleading statement to investigators looking into the allegations.  As a result of these documents, the applicant was required to show cause for retention.  The show cause board of three colonels determined he committed no misconduct, did not misuse an NTV and did not mislead investigators.  The decision of the Officer Special Review Board (OSRB) that it was not their function to “second guess” the decision of the rating chain is correct only insofar as it went.  It the OSRB’s function to look into the underlying facts of the case and to determine whether the rater acted arbitrarily and capriciously or whether his actions resulted in an injustice.  In this case, both are true.

4.  The applicant’s military records show that he was commissioned on              18 December 1982.  On or about 27 January 1994, he was assigned to the 21st Combat Equipment Company, Ter Apel, the Netherlands as the company commander.  He received a change of rater OER for the period ending 29 June 1994 when his battalion commander departed.  He was promoted to major on     1 October 1994.

5.  The contested OER is an 8-month relief for cause OER for the period 30 June 1994 through 15 February 1995.  Part IVa8, displays sound judgment, contains a 3 rating (with a rating range of to the highest degree of 1 through to the lowest degree of 5).   The rater entered the comment “Used poor judgement and set double standards, having instructed his subordinates to pick him up at his home in Non-tactical vehicles” in part IVb.  In part Vb, the rater rated his performance as “always exceeded requirements.”  Part Vc contains several laudatory comments concerning his performance but also several comments concerning his relief from command for misusing a government NTV.  The rater rated his potential as “do not promote.”  The senior rater gave him a 3-block rating (20/30/1/0/0/0/0/0/0) and commented that his relief for cause was based on his conduct.

6.  On 9 February 1995, the applicant received a GOMOR for misusing a government vehicle by instructing subordinates to pick him up at his home and for making deceptive statements concerning that misuse.  The applicant submitted a detailed rebuttal with supporting statements (many of these same statements are discussed at length in his first OER appeal).  He discussed at length and with supporting statements that he did ask to be picked up on the road to work, which was on an authorized route.  He acknowledged that his house was conveniently on this road but that was a coincidence and nothing he planned.  This was nothing out of the ordinary for members of his unit to do.  His rater had used NTVs for personal use.  His rater had it in for him because he lived in the house his rater wanted and would not move out so his rater could move in.  On 12 May 1995, the commanding general considered the applicant’s rebuttal and directed the GOMOR be filed in his OMPF.

7.  In November 1995, the applicant appealed the OER.  The OSRB denied his appeal based upon the presumption of regularity.

8.  On 14 February 1996, the Department of the Army initiated elimination action on the applicant for misconduct, moral or professional dereliction, based upon the contested OER and the GOMOR, and directed him to show cause for retention on active duty.

9.  On 9 January 1997, the board of inquiry convened.  After carefully considering the evidence presented from both the Government and the applicant, the board found that the applicant did not misuse a Government vehicle by having a subordinate pick him up at his home and drive him to his place of duty.  He never directed a vehicle travel for the exclusive mission of his personal duty to domicile or domicile to duty travel.  He reasonably believed that dropoff along an accepted route by a vehicle on official business was not a violation of the regulation.  His actions were consistent with formal and informal practices and policy in effect in the command during the period the alleged violations occurred.  The board also found that the applicant did not provide deceptive statements to an investigator.  The board recommended the applicant be retained on active duty and that testimony and exhibits presented on his behalf attested to his high character, outstanding duty performance and potential for continued service in the United States Army.  Department of the Army approved his retention on active duty on 24 June 1997.

10.  The applicant appeal his OER again on 24 February 1998.  The OSRB again denied his appeal based upon the presumption of regularity.

11.  Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER.  The regulation also provides that an OER accepted for inclusion in the official record of an officer 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 the rating officials at the time of preparation.  The burden of proof in appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence that action is warranted to correct a material error, inaccuracy or injustice must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

12.  Army Regulation 600-37 sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely or inaccurate is not filed in an individual official personnel files; and ensure that the best interest of both the Army and the soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  In pertinent part, it states that a letter to be included in a soldier’s OMPF will be referred to the recipient concerned for comment.  A letter may be filed in the OMPF only upon the order of a general officer or by direction of an officer having general court-martial jurisdiction over the individual. 

13.  Army Regulation 600-8-24 prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more.  Chapter 4 states that elimination action may be or will be initiated for misconduct, moral or professional dereliction, or in the interest of national security, or when several other conditions exist.  When such an action is determined to be appropriate, a nonprobationary officer will be required to show cause for retention on active duty.  A board of inquiry will be appointed to give the officer a fair and impartial hearing determining if he will be retained in the Army.  The Government is responsible to establish, by preponderance of the evidence, that the officer has failed to maintain the standards desired for his or her grade and branch of that the officer’s conduct has been prejudicial to national security.  In the absence of such a showing by the Government, the board will retain the officer.  However, the respondent is responsible for producing evidence to disprove the government’s position.

CONCLUSIONS:

1.  The Board concludes that an injustice has occurred in this case.

2.  The applicant received the contested relief for cause OER specifically for misusing a government non-tactical vehicle (NTV) and providing a false or misleading statement to investigators looking into the allegations.  The GOMOR was given for the same specific reasons.  

3.  When the board of inquiry made its findings, it could have stated that the applicant may have misused a government NTV and may have provided a misleading statement to investigators and still recommended his retention.  
However, they did not.  The board of inquiry unequivocally found that the applicant did not misuse a Government vehicle by having a subordinate pick him up at his home and drive him to his place of duty; he never directed a vehicle travel for the exclusive mission of his personal duty to domicile or domicile to duty travel; and that he did not provide deceptive statements to an investigator.  The Board concludes that the board of inquiry’s findings effectively overcame the presumption of regularity concerning the contested OER and, thereby, the GOMOR.  

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

     a.  expunging the OER for the period ending 15 February 1995 and the GOMOR dated 9 February 1995 and all related documents from the applicant’s OMPF; and

     b.  returning to the Board for permanent filing, in accordance with Army Regulation 15-185, paragraph 21e, the proceedings of the Board and all documents related to this appeal following completion of the administrative corrections directed herein.

2.  That following administrative implementation of the foregoing, the applicant’s records be submitted to a duly constituted Special Selection Board for reconsideration for promotion to lieutenant colonel.

3.  That if the applicant is selected for promotion, his records be further corrected by promoting him to lieutenant colonel and assigning the appropriate date of rank and that the Defense Finance and Accounting Service then pay him all due back pay and allowances.

4.  That if the applicant is not selected for promotion, he be notified accordingly.

BOARD VOTE:  

__rvo___  __jma___  __cjp___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000039373	
SUFFIX		
RECON		
DATE BOARDED	20000511	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.	134.01	
3.	131.01	
4.		
5.		
6.