MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            18 July 2000
	DOCKET NUMBER:   AR2000043563

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

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Ms. Margaret V. Thompson		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

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

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, removal of a Relief for Cause Officer Evaluation Report (OER) and a General Officer Memorandum of Reprimand (GOMOR) from his Official Military Personnel File (OMPF).

APPLICANT STATES:  In effect, there was an insufficient basis for the relief for cause and the contested OER was unfairly developed.  In addition, the action was unjust and the OER and associated GOMOR pose a continued unjust threat to his continued service in the Army.  

He claims there was an insufficient basis for rendering the contested OER and the report was unduly harsh and unwarranted in this case.  He states he was not sufficiently counseled by rating officials in regard to the reasons for the contested report and he was never provided the opportunity to overcome any alleged performance deficiencies as envisioned in the governing regulation.  He also comments that the evaluation contains significant inconsistencies.  He claims this is evidenced by his being described as a solid performer, by three separate senior officers, in two previous OER’s he received for the same job. 

He further indicates there were several inconsistencies in the contested report and there was no evidence of failed performance on his part.  He claims his rater and immediate supervisor failed to cite any personal observations of his alleged poor performance, but instead based the evaluation on two flawed informal investigations conducted, under the provisions of Army Regulation 15-6 
(15-6 Investigation).  

He cites errors in these investigations that he claims demonstrate the impropriety that infected the entire relief action against him.  The first 15-6 investigation was conducted in response to an equal opportunity complaint against two senior NCOs of his section and himself.  The Investigating Officer’s (IO’s) findings identified comments he made as insensitive but indicated they were not made to be malicious or degrading.  The IO also recorded in his findings that his apology to the soldier did much to relieve the tension that had resulted from his comments.  He indicates that he is truly sorry the soldier applied more meaning to the comments.  He admits to a poor choice of words, but claims he never used racial epithets or threatened anyone during his career and would never willingly place his needs over those of the soldiers in his charge.  However, this is not a zero defect Army and this issue did not warrant relief. 

He comments that the second investigation focused on the command climate but resulted in seriously flawed findings because it was based on unreliable statements.  Contrary to the regulation, the IO supports his conclusions with several off the record statements.  He also claims that some findings concerning him were arrived at with no supporting statements. 

He also claims the IO failed to investigate a major factor that influenced the work environment.  That factor was the conflict between the Division’s Chemical Company Commander and his section, which resulted in an unhealthy working condition.  He further claims there were several examples of how the company commander’s wrongful actions affected the soldiers in his section.  He included with his application the enclosed statement from a key NCO in the company that provides additional evidence of the company commander’s deleterious actions.  His deployment to Bosnia resulted in his being removed from the company commander’s rating chain and as such he was stripped of any authority to effect change and the investigation comments that the negative command climate of his section did not rest solely with him.  He states that these factors in regard to the 15-6 investigations demonstrate the impropriety that infected this entire relief action and as such the investigation reports are not reliable as a basis for the relief for cause OER.

He also states that the relief for cause action was unfair and did not follow proper procedures for such an action.  He indicates that in response to the action he recognized the disruption and turmoil the investigations had on his section and offered an alternative solution that would have better served all parties concerned.  He offered to combine his permanent change of station (PCS) preparations with increased leave time in order to expedite his departure from the command.  However, his rater ignored this alternative and continued the relief action. 

In addition, he comments that he received no counseling in regard to the relief action nor was his rebuttal acknowledged by his senior rater (SR).  This implies that his rebuttal was not adequately considered by the SR who simply rubber stamp approved the action and allowed it to proceed, and further issued the associated GOMOR without proper consideration of the facts and circumstances of his case.  He claims that the 15-6 investigations were improperly completed and were not signed prior to his receiving the contested OER.  He further indicates that by regulation it is inappropriate to refer to an incomplete investigation in an OER.  This he contends is supported by the V Corps Staff Judge Advocate (SJA) who identified that the relief for cause report contained a fatal flaw.  By regulation, investigation reports must be signed and approved and because these two reports did not contain the date of approval they could not stand as a valid basis for the contested OER.

In support of his application, the applicant has provided the enclosed expanded statement, with nine enclosures which include the following documents:  two previous OERs; one subsequent OER; six letters of support from third parties, and a letter from an NCO of a Chemical Company.  In addition, there are two tabs that include his appeal to the Officer Special Review Board (OSRB) and their response declining to consider his appeal based on insufficient evidence.  

EVIDENCE OF RECORD:  The applicant's military records show:

After serving on active duty in an enlisted status for 2 years and 21 days, on 
7 December 1978, he was appointed a Chemical Corps 2nd Lieutenant in the United States Army Reserve (USAR) with a concurrent call to active duty.  He has served on active duty continuously to the present.  He was promoted to the rank of Lieutenant Colonel (LTC) on 1 July 1995, and is currently assigned to the Defense Threat Reduction Agency, Chemical and Biological Division, Dulles, Virginia.  

On 3 February 1998, while the applicant was serving in Germany, an IO was appointed to conduct a 15-6 investigation of an Equal Opportunity (EO) complaint made by a soldier of the Division Chemical Section.  The IO began his investigation on 5 February 1998 and completed it on 9 March 1998.  In his findings the IO substantiated that, on 5 August 1997, the applicant made insensitive comments to the soldier in question and on 21 November 1997, the applicant violated the ethic rules contained in the Joint Ethics Regulation (JER).  This ethics violation was the result of the applicant tasking the soldier in question to run an errand to purchase water.  The IO did confirm that the applicant was unaware this action constituted an ethics violation. 

Based on his findings, the IO recommended that the applicant review the JER pertaining to the lawful use of subordinates and that the EO Office conduct “Consideration of Others” training in the applicant’s section and that the Inspector General (IG) conduct an immediate sensing session with the Division Chemical Section.  On 13 March 1998, this investigation was found legally sufficient by the SJA of the 1st Infantry Division.

On 1 April 1998, the 1st Infantry Division Chief of Staff appointed a  second IO to conduct an informal 15-6 investigation of the command climate of the Division Chemical Section and the applicant’s conduct in the treatment of subordinates, his leadership, and his use of authority and management practices with regard to his subordinates.  The IO began his investigation on 1 April 1998 and completed it on 20 April 1998.  

The IO’s findings indicate that the command climate of the Division Chemical Section was poor and unhealthy as a result of the applicant’s ineffective leadership and micromanagement.  The IO recommended that the applicant be relieved from his position because the assigned officers and NCOs had lost trust and confidence in the leadership and management abilities of the applicant and his senior NCO.  On 21 April 1998, this investigation was found to be legally sufficient by the SJA of the 1st Infantry Division.

On 22 April 1998, the Chief of Staff of the 1st Infantry Division, the applicant’s rater, officially notified the applicant that he intended to relieve the applicant from his duties as the Division Chemical Officer.  The rater cited his reasons for the action as the applicant’s demonstrated gross professional inefficiency as the senior leader of the Division Chemical Section.  The applicant was advised that this decision was based on the findings of two recent 15-6 investigations and on his own observations.  The applicant was also advised of his right to submit a rebuttal, which would be considered prior to making the final decision in his case. 

On 1 May 1998, the applicant submitted a rebuttal to his proposed relief for cause based on a pattern of gross inefficiency marked by poor leadership and management.  He indicated that at least until August 1997, his performance in this same position had been stellar.  He went on to claim that the proposed relief action against him was invalid given he had never been counseled, as required by regulation,  concerning the deficiencies noted in the intent to relieve letter.  He also cited what he believes are specific errors in the noted investigations and concluded that the two 15-6 investigations against him contained significant prejudicial errors and consequently provide no basis for his relief. The applicant requested reinstatement to his position until his PCS.  He also offered, as an alternative to relief, to extend his leave time and combine this with PCS preparation time to ensure he did not physically return to the section, which would allow a new leadership team to take over.  

On 6 May 1998, the Commanding General (CG) of the 1st Infantry Division, the applicant’s SR, issued the applicant a GOMOR as a result of recent investigations revealing behavior of an unprofessional and undignified nature, inconsistent with that expected of a senior officer.  The applicant provided a response to the GOMOR requesting that his 1 May 1998 rebuttal to the notice of relief for cause be reviewed and expressing his belief that this would show there was insufficient evidence to support filing the GOMOR in his OMPF.  On 26 May 1998, the CG, after reviewing the applicant’s response, directed that the GOMOR be filed in the applicant’s OMPF.  

The contested OER is a relief for cause report for the period 1 October 1997 to 
4 May 1998 which evaluated the applicant as a LTC while performing duties as the Division Chemical Officer for the 1st Infantry Division in Germany.  The report was forwarded to the applicant on 21 May 1998.  

In Part IV (Professionalism-Rater) A (Army Values) the rater responded “No” to one of the seven Army Values, “Respect”.  In addition, in part B (Leader Attributes/Skills/Actions), the rater answered “No” in the following three blocks:   “Interpersonal” in subparagraph B2 (Skills); and “Motivating” and “Building” in subparagraph B3 (Actions Leadership).  

In Part V (Performance and Potential Evaluation-Rater) the rater placed the applicant in block 3 (Unsatisfactory Performance-Do Not Promote) and commented, in effect, that while the applicant demonstrated technical competence during the rating period, his ability to lead subordinates and other officers was not to Army standards.  

The rater also provided comments that indicated that he relieved the applicant as a result of two 15-6 investigations that revealed a pattern of gross inefficiency marked by poor leadership and management of the personnel in the Division Chemical Section.  The rater also commented by stating that the applicant’s insensitive remarks and poor leadership skills created an atmosphere of disrespect and fear in his section and did not promote dignity and fairness which resulted in the “No” responses in Part IV.  The rater concluded that the applicant’s substandard actions were not in keeping with the values and the professional leadership skills required of a senior officer, and undermined his ability to be effective.

In Part VII (Senior Rater) A (Evaluate the Rated Officer’s Promotion Potential to the Next Higher Grade) the SR placed the applicant in block 3 (Do Not Promote). Subparagraph B placed the applicant in the three block (Below Center of Mass-Retain) and in subparagraph C (Comment on Performance/Potential) the SR stated that the applicant was technically competent but did not possess the traits or skills to lead soldiers.  The SR concluded his comments by stating that he did not recommend the applicant’s promotion based on his failure to embrace the Army Values and his failure to maintain a climate of respect and dignity in the Division Chemical Section.

On 18 May 1998, this OER was referred to the applicant.  The applicant provided comments in response to the referral action on 19 May 1998.  He indicated that his relief for cause and the accompanying OER were not warranted nor were these actions supported by the evidence.  He further claimed that the OER’s adverse conclusions were substantially inaccurate and were based on a flawed investigation.  He also remarked that he had previously stated his objections to the investigation and the unjustified relief for cause and believed his response was not fully or fairly considered prior to the action being taken.  Therefore, he felt no need to restate his objections at that time, and instead would address his comments to the OSRB via an appeal action. 

On 30 June 1998, the V Corps IG advised the applicant that he had concluded his investigation and due process review regarding his relief for cause OER.  The IG found that the evidence in the case supported the fact that the applicant received complete due process.  Further, it was noted that the V Corps SJA found the action to be legally sufficient.  The applicant was advised that if he was still not satisfied he could apply for relief through the OSRB and subsequently to this Board, but the IG would take no further action on the case.  
On 20 August 1999, the applicant appealed the contested OER to the OSRB, under the provisions of chapter 9, Army Regulation 623-105 based on substantive error.  He claimed that the second of the two 15-6 investigations, which was used as the basis for his relief, contained a fatal flaw because it was not signed and approved prior to the relief action.  Therefore, these investigation reports could not stand as a valid basis for the relief action.  Further, he commented that undue command influence and the lack of the IOs being qualified to investigate him based on their not being senior to him, as required by regulation, rendered the findings and recommendations of the investigations invalid.  Finally he indicated that the OER is invalid because neither the rater or SR cited in the contested OER that he failed in the performance of his duty, which is required for a relief report.  

On 30 September 1999, the OSRB completed a review of the applicant’s appeal and returned it without action.  They commented that his contentions that the contested OER was based on the results of flawed investigations, was tainted with undue command influence, and did not afford him due process had not been sufficiently established for further adjudication by the OSRB.  They commented that while the applicant had provided his self-authored statements and memoranda concerning the incidents which led to his relief, copies of the two 
15-6 investigations, an IG and legal review of the due process of his relief, and several third party supporting memoranda reflecting on the applicant’s past performance, he failed to substantiate that the rating officials failed to execute their regulatory duties. 

Specifically the OSRB found the applicant failed to provide sufficient evidence to overcome the presumption of regularity identified by the governing OER regulation and that the evidence also did not diminish the weight of the 
15-6 investigations and the subsequent GOMOR.  In addition, they noted that the letter of relief provided cites that the rater lost trust and confidence in the applicant’s judgment and leadership abilities.  They advised the applicant that, by regulation, the burden of proof for the contentions rested squarely with him and accordingly to justify removing the report he must produce evidence that clearly and convincingly nullifies the regulatory presumption of regularity.  The OSRB concluded by indicating that the evidence submitted by the applicant did not refute the veracity of his relief for cause report as prepared and executed.  

Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive and may be used as a general guide for investigations or boards authorized by another directive. Paragraph 2-1c (Who May Be Appointed) states, in pertinent part, that an IO will be senior to any person whose conduct or performance of duty may be investigated, or against whom adverse findings or recommendations may be made, except when the appointing authority determines that it is impracticable because of military exigencies. 

Army Regulation 623-105 (Officer Evaluation Reporting System) provides the policy and procedure for processing OER’s.  Paragraph 3-57 of the OER regulation states, in pertinent part, that an evaluation report accepted by Headquarters, Department of the Army 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.  

Paragraph 9-10 (Burden of Proof and Types of Evidence) states, in pertinent part, that the burden of proof on appeals 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 paragraphs 3-57 and 6-6 should not be applied to the report under consideration; that action is warranted to correct a material error, inaccuracy, or injustice; that clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of his/her assertions, the clear and convincing standard has been met with regard to those assertions.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board noted the contentions of the applicant that the contested OER was based on the results of flawed investigations, it was tainted with undue command influence, and he was not afforded due process.  However, after careful review of the evidence of record and the independent evidence submitted by the applicant, the Board found these claims lacked sufficient merit to warrant relief. 

2.  The Board was satisfied that 15-6 investigations conducted, which led to the contested report and GOMOR, were accomplished in accordance with applicable regulations and that the applicant was afforded due process throughout the process.  This is verified by the legal sufficiency findings of the 1st Infantry Division SJA for both investigations and by the V Corps IG, after a through legal due process review had been conducted.  

3.  Further, the Board concurs with the conclusions of the OSRB that the applicant had failed to provide a sufficient evidentiary basis to refute the veracity of his relief for cause report as prepared and executed; that he failed to provide sufficient evidence to overcome the regulatory presumption of regularity; and that the evidence he submitted did not diminish the weight of the 15-6 investigations and the subsequent GOMOR.  

4.  The Board did note and consider the previous positive evaluation reports, the third party letters of support, and the subsequent positive OER submitted by the applicant in support of his case.  However, while very positive, these factors alone do not sufficiently mitigate the basis for the contested OER and GOMOR. 

5.  The Board found the evaluations rendered on the applicant in the contested OER represented the considered opinion and objective judgment of the rating officials at the time of preparation.  In addition, given the facts and circumstances surrounding this case, issuing the applicant a GOMOR was an appropriate response.  Therefore, the Board finds no basis for removing either the contested OER or GOMOR from the applicant’s OMPF.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___gp___  __mvt___  ___eb___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000043563	
SUFFIX		
RECON		
DATE BOARDED	2000/07/18	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  193	111.0000	
2.		
3.		
4.		
5.		
6.