PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           14 March 2001                   
	DOCKET NUMBER:   AR2000042526

	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.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Arthur A. Omartian		Member	
	Mr. Kenneth L. Wright		Member	
	Mr. Roger W. Able		Member	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein. 

	The applicant did appear before the Board and was represented by counsel.

	The Board considered the following evidence:

Exhibit A - Application for correction of military records
Exhibit B - Military Personnel Records (including advisory opinion, if any)
Exhibit C - Case Summary
Exhibit D - Live testimony and any evidence introduced during the hearing

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 General Officer Memorandum of Reprimand (GOMOR) dated 8 January 1999 and the Officer Evaluation Report (OER) for the period 26 June 1998 through 31 March 1999 be removed from his records and that, if appropriate, his records be reconsidered for promotion (he was promoted to major on 1 April 1998).

3.  The applicant defers to counsel.  Counsel states all of the applicant’s OERs except the contested report reflect that he “always exceeded requirements” and that his potential for promotion was always “promote ahead of contemporaries” or, under the new system, “outstanding performance, must promote.”  The latter two OERs cover the period he was assigned as a Psychological Operations officer in an operational detachment supporting U. S. Southern Command (USSOUTHCOM) and U. S. Special Operations Command South (USSOCSOUTH) working in Honduras, Nicaragua and Costa Rica.  The GOMOR was the result of an informal Army Regulation (AR) 15-6 investigation.  The “informal” rather than “formal” investigation had the effect of denying the applicant the opportunity of being represented by counsel and the opportunity to ask questions of those witnesses who made allegations against him.  The investigating officer (IO) made no finding that the applicant was seen by his subordinates in a non-duty situation with host nation females (GOMOR allegation #2) or that he demonstrated poor judgment by allowing “excessive partying” to take place between team leadership and subordinate personnel (GOMOR allegation #3).  The IO recommended only that the applicant receive a letter of concern, not a GOMOR.  The appointing officer approved the findings and the recommendation as they pertained to the applicant. 

4.  The first GOMOR allegation was that the applicant spoke of participating in inappropriate sexual relationships with host nation women and that these comments gave the perception that he was engaged in adultery.  This allegation is not supported by sufficient reliable or credible evidence.  The applicant was in Central America from 2 November 1997 through 2 April 1998.  He returned for another assignment in Central America about 14 June 1998 until 10 September 1998.  Major (MAJ) B___ also deployed to Central America for about the same period.  It was not until 28 September 1998 that MAJ B___ alleged that the applicant told him that he, the applicant, had engaged in oral sex with a woman the last time he was at the hotel.  There is no independent corroboration of what he claims the applicant said.  In addition, the IO found that Staff Sergeant (SSG) Ru___, who was the noncommissioned officer in charge of MAJ B___’s detachment, consistently violated the battalion two-man rule policy.  The applicant contends that when MAJ B___ became aware that suspected violations of the two-man force protection rule were the subject of the investigation he deflected attention away from possible misconduct by members of his team by making the damaging statement against the applicant.  Sergeant (SGT) Ro___, a member of MAJ B___’s team, claimed that SGT Re___, a member of the applicant’s team, told him that SGT Re___ and the applicant had taken two strip club dancers back to their hotel and had sexual relations with them.  This statement was false.  SGT Ro___ provided no clarifying details.  SGT Ro___, in response to a question concerning instances of sexual relations between team members and host nation personnel, failed to mention that MAJ B___ had attended a strip club and had received a “lap dance” as well as a “private dance.” In addition, SGT Re___ denied SGT Ro___’s allegation in his sworn statement.  The only other individual to allege that the applicant admitted to having relations with host nation women is Specialist (SPC) G___.  That allegation was made in an unsworn statement taken after the 15-6 was closed.  In three previous, sworn statements SPC G___ denied having any knowledge of immoral activities by team members.  

5.  The second GOMOR allegation was that the applicant was seen by his subordinates in non-duty situations with host nation females.  The only individual to make this claim was SGT M___.  She claimed she saw the applicant and an undescribed and unidentified female walk out of the applicant’s room.  She claimed she saw condoms in his room.  These “condoms” were alcohol pads he used for treating his ingrown beard condition.  The only other occasion SGT M___ claims she saw the applicant with a host nation woman in his room was the time he was in his room with Mr. and Mrs. H___, friends and social acquaintances of his.  Both Mr. and Mrs. H___ have provided sworn statements that it was Mrs. H___ SGT M___ saw in his room that time.  

6.  The third GOMOR allegation was that the applicant demonstrated poor judgment by allowing “excessive partying” to take place between team leadership and subordinate personnel.  This allegation is not substantiated by the 15-6 investigation and the IO did not make this finding.  There was never an occasion that the applicant smelled alcohol on the breath of any of his soldiers during the duty day and no one brought to his attention that on one occasion SGT Re___ was reportedly on duty with alcohol on his breath.

7.  The fourth GOMOR allegation was that on numerous occasions the applicant failed to strictly enforce the USSOUTHCOM and USSOCOM two-man force protection rule.  First, the 15-6 investigation only concluded that “there were violations of enforcement of the Battalion policy of [the] two man rule” and the IO’s recommendation was that SSG Ru___ receive a letter of concern for consistently violating the two man rule.  SSG Ru___ was a member of MAJ B___’s team and was under MAJ B___’s supervision, not the applicant’s supervision.  During the transition period, the applicant requested to be briefed on the two-man rule because he had not seen anything in writing on this particular policy.  He was told only that “no one goes out at night alone and travels throughout the countryside, particularly in the Juigalpa, Nicaragua area…” However, it was added that in Danli and Tegucigalpa “It’s not a big deal.” 

8.  The applicant appealed the GOMOR to the Department of the Army Suitability Evaluation Board (DASEB).  The DASEB denied his appeal.  The DASEB acknowledged that two statements from SGTs M___ and Ro___ were not sworn but opined that this was somehow remedied by the fact that subsequent sworn statements were taken from them.  This ignores the IO’s appointment letter making it clear that “All witness statements will be sworn utilizing DA Form 2823.”
The DASEB viewed the issue of SPC G___’s fourth statement, recanting his previous three statements, as a non-issue because the applicant was provided a copy of the statement along with the opportunity to rebut it.  DASEB ignored the important point that SPC G___’s fourth statement was the best proof that he was an unreliable witness.  It is also noteworthy that in his legal review of the 15-6 investigation, a Judge Advocate (JA) stated that “…The IO’s recommendation is consistent with the findings.”  Then in his Executive Summary in regard to the GOMOR the same JA stated that the purpose of that document was “…to provide legal review about the information that justifies the above referenced action,” that is, the GOMOR.  It is inconsistent to hold the position that the recommendations of the IO were consistent with the findings and then later write a justification for an action which far exceeded what the IO recommended.  The DASEB also made reference to the applicant’s overall performance as being “below average” and cites the contested OER as evidence.  However, this contested OER was based on the alleged incidents for which the GOMOR was issued.  Except for this single OER, which the applicant contends is substantively inaccurate, his military career cannot fairly be described as “below average.”

9.  Counsel contends the OER is substantively inaccurate for basically the same reasons that the GOMOR was unjustly given.  The applicant appealed the OER but the Officer Special Review Board (OSRB) informed him that his file was unacceptable for adjudication.  The applicant contends that the OSRB’s refusal to adjudicate his appeal is contrary to its own regulation and totally arbitrary and capricious.

10.  The applicant provides five notarized character references from one brigadier general, one colonel, one lieutenant colonel and two majors.  While he understands that such evidence does not refute specific allegations against him, he contends that character evidence is relevant in this case since it is his truthfulness and moral character that are questioned here.  Other supporting evidence is as listed on the Exhibit List attachment to the DD Form 149.

11.  The applicant’s military records show that he was commissioned a second lieutenant and entered active duty on 17 November 1986 as a field artillery officer.  All his OERs through 14 June 1995, during which periods he served in field artillery officer positions, show he received center-of-mass senior rater ratings.  

12.  The applicant completed the Spanish Special Operations Forces Course on  5 January 1996, the Regional Studies Course on 3 July 1996 and the Combined Arms and Service Staff School on 9 October 1996.  On 4 November 1996, he was assigned to 4th Psychological Operations Group, Fort Bragg, NC as a Group Training Officer.  On 25 June 1997, he was assigned to 1st Psychological Operations Battalion, Fort Bragg, as a Psychological Operations Officer.  His OER ending 30 September 1997 (his last OER under the 67-8 system) shows he received a center-of-mass senior rater rating (18/0/0/0/0/0/0/0/0) although his senior rater commented “…is clearly within the top 10% of the PSYOP officers in this battalion.”  The senior rater also commented “As a result, I have personally selected him to assume command of and lead our PSYOP detachment providing mine awareness support to Honduras, Nicaragua and Costa Rica.”  His OER for the period ending 27 February 1998 (his first under the 67-9 system) also shows he received a center-of-mass senior rater rating although his senior rater commented ”…is clearly one of the best young officers assigned to this battalion and demonstrates unlimited future potential.”  The senior rater also commented that his programs had been so effective that the USCINCSOUTH staff had requested him by name to conduct a mine awareness assessment in Guatemala.

13.  The applicant was promoted to major on 1 April 1998.  His OER for the period ending 25 June 1998 shows he received a center-of-mass senior rater rating although his senior rater commented “…promote to LTC.  He has unlimited potential, and could be a great PSYOP Bn Cdr.”  The senior rater also commented that he was very impressed with the serious, no nonsense way in which he approached his duties, combined with his charismatic, mentoring leadership style.  

14.  The contested OER is a 9-month change of duty report for the period          26 June 1998 through 31 March 1999.  In part IVa, the rater checked the “no” block for all seven categories of Army Values.  In part IVb, the rater checked the “no” block for the “conceptual,” “decision-making,” and “building” Leader Attributes/Skills/Actions categories.  In part V the rater checked the “unsatisfactory performance, do not promote” block.  Comments included “…was also instrumental in leading certain soldiers astray by his personal conduct and the inappropriate activities he participated in.  His personal conduct and actions during the evenings were extremely detrimental to the overall effectiveness of the unit…has clearly demonstrated that he has a significant integrity problem, as a married member of this command, and a leader in the U. S. Army.”  In part Vc the rater commented “…demonstrates no potential for positions of responsibility or promotion.  His actions and moral character show no reason for further continued service in any career field.”  In part VII, the senior checked the “do not promote” block and rated his potential as below center of mass.  He commented “…his behavior while deployed was inappropriate.  Although he denied this behavior, all four soldiers under his command perceived he was having inappropriate sexual relationships with host nation women…he failed to follow or enforce the two-man security rule for his unit during this mission.  The Army does not need officers like this to lead its soldiers.”

15.  On 24 September 1998, an IO was appointed to conduct an informal investigation into allegations of misconduct and violations of USSOUTHCOM’s policy on force protection that occurred in Central America.  The investigation would cover both the IADB PSYDET and the Comic Book Dissemination PSYDET for a period of two rotations.  The IO would also look into adultery allegations.  All witness statements would be sworn.

16.  Numerous sworn statements were taken from the applicant and MAJ B___ and members of their teams.  (It appears from one sworn statement that SGT M___, SGT Re___ and SPC G___ were the members of the applicant’s team. SSG Ru___, SGT Ro___ and SPC M___ were apparently members of MAJ B___’s team.)  Almost all of them stated they knew of the two-man force protection rule.  Several statements indicated no knowledge of team members participating in sexual relations or other immoral activities with host nation personnel.  Several statements indicated no knowledge of excessive drinking or partying although acknowledging drinking and going to clubs.  MAJ B___ did state that “excessive partying” is a personal measure but he would say yes.  One person who came to his mind was SGT Re___ who smelled of alcohol at work the next day at least twice.  SGT M___ stated one morning at the Nicaraguan Embassy SGT Re___ smelled horribly of alcohol.  One morning SGT M___ saw the applicant escort a female out of his room but she had no knowledge of when the female had arrived.  SGT Ro___ stated SGT Re___ told him the last time he and the applicant were at a club they took two of the dancers back to their hotel.  Also, that once the applicant told him he had had a date with a waitress and had sex with her.  In response to another question, he stated he had no knowledge of host nation personnel being in hotel rooms either accompanied or unaccompanied.  SPC G___ stated that he had no knowledge of team members having host nation personnel in their rooms but also that he had two females in his room once but they were looking for SPC D___, not the applicant.  He never told SGT M__ that one of them was the applicant’s girl friend.  

17.  On 27 October 1998, the IO found:  That there were no violations of Article 134 of the UCMJ, Adultery and Fraternization, that could be proven; that there were violations of enforcement of the battalion policy on the two man rule; that the applicant demonstrated poor judgment by making comments that gave the perception he had engaged in sexual activities; that SSG Ru___ violated the two-man rule; that MAJ B___ stated the applicant told him he had oral sex with a woman during his earlier deployment; that SGT Ro___ stated the applicant made a comment about having sex with a female in his room; that the applicant denied both of these incidents; that SPC G___ admitted to First Sergeant (1SG) J___ that he “got laid” while deployed; and that SSG Ru___ went out alone in violation of the two-man rule.  The IO recommended that the applicant receive a letter of concern for bad judgment based on comments he made inferring he engaged in sexual activities; that SPC G___ receive a letter of concern for bad judgment for engaging in sexual activity with a woman other than his wife; that the applicant, SGT Re___, SGT M___ and SPC G___ not deploy together in the future, and that SSG Ru___ receive a letter of concern for consistently violating the two-man rule.  The appointing authority approved the recommendations with the exceptions that SSG Ru___ and SPC G___ receive a letter of reprimand.

18.  On 9 December 1998, SPC G___ made another sworn statement in which he stated he had lied earlier.  He did have a sexual relationship with a female while he was in Honduras.  The applicant and SGT Re___ admitted to him that they had sexual relations with women in Costa Rica.  

19.  On 8 January 1999, the applicant was given a GOMOR from the Commanding General, Civil Affairs and Psychological Operations Command.  The GOMOR stated that during a recent deployment to Central America he had spoken of participating in inappropriate sexual relationships with host nation women.  His comments at least gave the perception that he was engaging in adultery.  He was seen by his subordinates in non-duty situations with host nation females.  He demonstrated poor judgment by allowing excessive partying to take place between team leadership and subordinate personnel.  On numerous occasions he failed to strictly enforce the USSOUTHCOM and USSOCOM two-man force protection rule.  

20.  The applicant provided a lengthy rebuttal to the GOMOR essentially as outlined in counsel’s contentions above.  He provided a number of supporting statements.  One statement was from the Commander, Office of the Defense Representative (ODR), under whose operational control the applicant had been while in Costa Rica.  The Commander, ODR stated that at no time did the applicant ever give him cause to question his behavior or demeanor.  If there were any indiscretions or unseemly behavior he was totally unaware of them.  He had an excellent working relationship with a wide array of host national counterparts and felt confident he would have unearthed any problems at an early stage in the mission.  The Operations NCO of the Defense Attache Office, Managua, Nicaragua stated his contact with the applicant’s team consisted of regular meetings as well as several social meetings during off-duty time.  During both official and social meetings he observed only professional behavior.  During off-duty meetings on embassy property he remembers only normal behavior with no intoxication by any detachment member.  Mrs. H___ stated that she visited the applicant at his hotel but was always accompanied by her husband.  It upset her that third persons said that she sustained other than friendly relations with the applicant.  Her husband provided a statement backing up her statement.  The manager of one of the hotels at which the applicant and his team stayed stated that all members of the applicant’s team were good and respectful people and he never knew any of them to have had problems with alcohol.  Two statements from majors who worked with the applicant and his predecessor in Central America noted that MAJ W___, the applicant’s predecessor, regularly violated the two-man rule.  SGT Re___ stated that 1SG J___ verbally abused him because he told the IO he did not know anything about the applicant. The 1SG told him he had been “busting his ass” to nail the applicant.

21.  On 5 February 1999, a JA prepared an executive summary, apparently preparatory to the commanding general making a final decision on the disposition of the GOMOR.  The JA devoted two and one-quarter pages to summarizing all the allegations against the applicant and a four-line paragraph to his rebuttal.  The JA stated that SGT Re___ alleged that 1SG J___ attempted to coerce false statements from him but the “allegations against 1SG J___ are completely out of character for him.”  The JA further stated that SSG Ru___ alleged that MAJ W___ violated the two-man rule.  MAJ W___ denied this allegation.  MAJ W___  was “a fine officer with an impeccable service record.”  The JA summarized by stating that the applicant was unable to distinguish the difference between duty and having a good time.  His actions and failure to lead dishonored himself and seriously compromised his standing as an officer.  His actions exceeded the limits of tolerance on moral standards required of commissioned officers.

22.  On 10 February 1999, the commanding general directed filing of the GOMOR in the applicant’s OMPF.

23.  On 30 March 1999, the applicant appealed the GOMOR with the results as outlined in counsel’s contentions above.  

24.  The applicant appealed his OER and the OSRB returned it without further action in that insufficient evidence of a clear and convincing manner for the OSRB to consider it was provided.

25.  The applicant’s OER for the period 1 April 1999 through 24 August 1999, during which period he served as a Group Assistant Operations Officer with 4th Psychological Operations Group, Fort Bragg, NC shows the senior rater rated him as center-of-mass.  His rater checked the block “outstanding performance, must promote.”  His senior rater checked the block “best qualified” and commented “…is a great officer and has tremendous potential for future service.” The same individual was the senior rater for this OER, the contested OER, and the OER immediately preceding the contested OER.

26.  AR 600-37 sets forth policy and procedures to authorize placement of unfavorable information about Army members in 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 may be filed in the OMPF only upon the order of a general officer.  The letter must have been referred to the recipient concerned for comment.  Once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. 

27.  AR 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.

28.  AR 15-6 establishes procedures for investigations or boards of officers not specifically authorized by other regulations.  Paragraph 1-4Aa states that an administrative fact-finding procedure under this regulation may be designated an investigation or a board of officers.  Procedures that involve a single IO using informal procedures are designated investigations.  Paragraph 1-4Bb(2) states that regardless of the purpose of the investigation, even if it is to inquire into the conduct or performance of a particular individual, formal procedures are not mandatory unless required by other applicable regulations or directed by higher authority.  Paragraph 1-4Bb(3) states that unless formal procedures are expressly required, either by directive authorizing the board or by the memorandum of appointment, all cases to which this regulation applies will use informal procedures.  Paragraph 1-7 states that respondents may not be designated in informal investigations. 

29.  A formal hearing was granted in the applicant’s case on 14 March 2001.  He and counsel attended.  He testified under oath in his own behalf.  

CONCLUSIONS:

1.  The Board concludes that there was no violation of AR 15-6 in using an informal investigation rather than a formal investigation in the applicant’s case.  However, this was a case where witnesses gave conflicting testimony, vague accusations were made, unsworn statements were accepted, and uncorroborated statements from individuals who may have had an interest in covering up their own misconduct was accepted.  Because of the nature of an informal investigation, the applicant was never given the chance to confront his accusers and demand that they be specific in their allegations.  The Board concludes that the applicant thereby did not have the opportunity to adequately defend himself against the allegations.

2.  The IO acknowledged the obfuscation inherent in all the statements obtained by making relatively minor findings.  In fact, only one of the findings was directly tied to the applicant -- that he demonstrated poor judgment by making comments that gave the perception he had engaged in sexual activities.  The Board notes, however, that this finding was based upon the uncorroborated statements from individuals who may have had an interest in covering up their own misconduct.  The IO found that there were violations of enforcement of the battalion policy on the two man rule but mentioned only SSG Ru___ by name as one who violated that rule.  SSG Ru___ was not a member of the applicant’s team.  Based on the relatively minor findings, the IO recommended relatively minor punishment in the applicant’s case – a letter of concern.

2.  The Board found that the GOMOR cited the applicant for misconduct that was not found by the IO.  The Board also noted that the executive summary was highly prejudicial against the applicant.  It contained additional facts not provided to the applicant, personal opinions of the JA, and attributed misconduct committed by members of MAJ B___’s team to the applicant.  The Board concludes that the imposition of the GOMOR was an injustice.  

3.  The Board concludes that the OER, based on the same allegations for which the GOMOR was imposed, did not represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The Board also noted that it suspiciously conformed more to the conclusions in the executive summary than to the relatively mild findings of the IO.

4.  Given the findings of the IO, the prejudicial perception created by the executive summary to the GOMOR, the applicant’s excellent performance of duty as attested to in third party statements and in his subsequent OER by the same senior rater, and the applicant’s overall record of service, the Board concludes that full relief is warranted.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

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

     a.  expunging the GOMOR dated 8 January 1999 and all related documents from the applicant’s Official Military Personnel File;

     b.  expunging the OER for the period 26 June 1998 through 31 March 1999 from the applicant’s records, and all related documents, and by declaring the period of service covered by the OER as a nonrated period of service and that a non-prejudicial explanation be placed in his records explaining the gap created in OER rating periods, as a result of this action; and

     c.  if appropriate, that the applicant’s records be submitted to a duly constituted Special Selection Board for reconsideration for promotion to lieutenant colonel.

2.  In accordance with Army Regulation 15-185, following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal will be returned to the board for permanent filing.
						June Hajjar
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000042526	
SUFFIX		
RECON		
DATE BOARDED	20010314	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	220.01	
2.	134.01	
3.		
4.		
5.		
6.