MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 March 2001                   
	DOCKET NUMBER:   AR2000050444

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Donald P. Hupman, Jr.		Member	
	Mr. John T. Meixell		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:  That the General Officer Memorandum of Reprimand dated 8 September 1997 and the Officer Evaluation Report (OER) for the period ending 1 June 1997 be expunged from his records.

APPLICANT STATES:  That the GOMOR and OER in his Official Military Personnel File (OMPF) unfairly and unjustly discredit his overall manner of performance and character of service.  He did not argue to the Department of the Army Suitability Evaluation Board (DASEB) that he was not responsible for his unit.  He was responsible for his battalion and fully accepts responsibility for all his decisions as the Commander, 143d Ordnance Battalion.  His contention was that he fully executed his duties as commander in all respects and specifically with regard to the sexual misconduct that occurred in his unit both during and prior to his assumption of command.  

The applicant provides a letter of support from the senior rater of his contested OER.  The senior rater, the Commanding General of the U. S. Army Ordnance Center and School, Army Proving Ground (APG), MD, stated that he, along with other officers in the Army’s senior leadership, made certain decisions with regard to correcting sexual misconduct problems.  The decisions included notification of the media.  Unfortunately, the decision to publicize the cases overemphasized misconduct cases at APG.  The applicant responded fully and appropriately to the sexual misconduct cases that arose during his command.  The GOMOR and the OER based on the GOMOR should be removed from the applicant’s OMPF.  As can be seen from the signature date on the OER, that OER is based to a significant degree on the GOMOR.

COUNSEL CONTENDS:  Counsel makes no additional contention.

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

He was appointed a second lieutenant in the Ordnance Corps and entered active duty on 5 August 1977.  He was promoted to lieutenant colonel on 1 May 1994.  On or about 28 July 1995, he was assigned as the Battalion Commander, 143d Ordnance Battalion, U. S. Army Ordnance Center and School, APG, MD.  He was responsible for the command and control of a headquarters and headquarters company and three advanced individual training companies.

On 5 November 1995, Command Sergeant Major (CSM) K___, the battalion CSM, notified the brigade and battalion equal opportunity (EO) advisors that there was a problem in one of the companies that needed to be looked into.  Two trainees had both written statements about Drill Sergeant (DS) S___ being unprofessional and harassing them.  The two EO advisors informally investigated the complaints.  The brigade EO prepared a memorandum for record in which she stated that although no EO problems could be substantiated, she recommended in part that the chain of command notify DS S___ that such actions are inappropriate, unprofessional and could result in disciplinary action if substantiated.

The battalion EO advisor prepared a memorandum for personnel concerned in which he stated that he could not say that the two soldiers were lying because they seemed to be quite convinced of the statements they made and at that point they could only be proved or disproved by a professional investigation.  He also stated that during the investigation some very serious concerns were brought out.   He recommended that allegations of sexual misconduct and fraternization
be followed up on.  An index card (on which DS S___ allegedly instructed one of the trainees to see him) was especially disturbing and it may or may not substantiate allegations that were made.  

The applicant provides extracts of newspaper articles, three dated November 1996, one dated May 1997, and one dated September 1997 and a transcript from a 12 November 1996 broadcast of the television show “Nightline” concerning DS harassment of trainees in general and at APG in particular.

The applicant’s OER for the period ending 1 June 1997 shows that his senior rater gave him a 3-block, below center of mass rating (35/1/1/0/0/0/0/0/0).  The senior rater’s comments included “As a result of ___’s previous over-reliance on his non-commissioned officers, who in the final analysis let him down, he did not help bring about correction of sexual misconduct by some of his subordinates in a timely manner.”  The senior rater signed the OER on 3 February 1998.

On 27 June 1997, the applicant was informed that he was temporarily suspended from all duties pending a decision whether to relieve him for cause.  The specific charge was that he failed to thoroughly investigate allegations of trainee against trainee abuse within his command and demonstrated poor judgment in failing to take proper actions against a DS who was sexually harassing trainees under his command.

On 8 July 1997, the applicant responded to the suspension notice.  He stated that the trainee against trainee abuse allegation began before he assumed command and first came to his attention a week after he assumed command.
The allegations were thoroughly investigated by the Criminal Investigation Command (CID) and by a 15-6, outside-of-battalion investigating officer.  He discussed all aspects of the case with several individuals including an officer from the Staff Judge Advocate.  His review of the case convinced him that the credibility of the two complainants was suspect.  It would not be fair to relieve him two years after the incident stemming from dissatisfaction with his discretionary recommendations and disposition in a military justice matter.  Regarding the allegation that DS S___ struck a trainee, an informal investigation revealed there were conflicting accounts of the incident and one of the witnesses quoted the complainant as stating she would “get” DS S___.  There was nothing to indicate DS S___ was involved in sexual misconduct at this time.  In view of DS S___’s reputation as a tough but fair DS and after discussion with CSM K___, he determined that an MOR and a transfer would be appropriate punishment.  When on the several occasions it was brought to his attention that a DS or other instructor was having improper contact with trainees, he imposed Article 15 punishment.  Around September 1996, when he first learned that DS S___ had attempted sexual contact with a trainee, he directed an outside 15-6 investigation which opened the door to subsequent CID investigations which led to DS S___’s court-martial.  

On 8 September 1997, the Commander, U. S. Army Training and Doctrine Command (TRADOC) issued a GOMOR to the applicant for failing to thoroughly investigate allegations of abuse against one of his drill sergeants who was sexually harassing trainees under his supervision.  Both the battalion and brigade EO representatives investigated the allegations and drafted reports but the applicant never read the results of the investigations.  He essentially abdicated his responsibility to monitor and investigate the complaints to his misguided CSM who informed him that the allegations were unfounded based on the brigade EO report but did not elaborate on the battalion EO report which suggested serious problems existed.  

On 1 October 1997, the applicant rebutted the GOMOR.  He accepted all responsibility for his decisions during his tour as Commander, 143d Ordnance Battalion but he wanted to place in context his actions regarding the two EO reports.  He was unaware of the written EO reports and CSM K___ advised him that the reports, which he thought were verbal, were unsubstantiated.  First, while CSM K___ may now be characterized as “misguided,” at the time of the EO report she enjoyed a sterling reputation throughout the chain of command.  His reliance upon her was in keeping with Army command philosophy and such reliance should not serve as a basis to reprimand him.  Second, he noted that both EO reports did find the complaints to be unsubstantiated and he was unaware of the additional EO comment.  Nonetheless, the CID had recently canvassed female soldiers during an investigation into an unrelated matter and no indication of DS misconduct came forward during their canvass.  Third, the brigade EO advisor never mentioned to him any concerns about improper conduct by DS S___ and he saw and spoke with her every week at brigade staff call.  Without question, if he could have acted with the knowledge he had now, he would have read the EO report, forwarded DS S___’s note to CID, and recommended court-martial.  Nonetheless, it should not be presumed that the “curtain” would have closed around DS S___ if CID had investigated the EO issues.

On 30 January 1998, the Commander, TRADOC made the decision to file the GOMOR in the applicant’s OMPF.  He stated that the misconduct that occurred during his leadership of the battalion indicated a widespread failure by the cadre in the battalion to adhere to the most basic standards in dealing with soldiers in training.

On 14 March 2000, the applicant appealed to the DASEB for removal of the GOMOR.  The DASEB noted that it was aware of the media coverage of the APG trainee abuse scandal but concluded that it was clear the imposing authority was convinced that the applicant’s failure, as indicated in the GOMOR, contributed to the much larger publicized cadre discipline problem.  The DASEB denied the applicant’s appeal.

Army Regulation 600-20 prescribes the policies and responsibilities of command, which includes military discipline and conduct and the Army Equal Opportunity Program.  It states that the prevention of sexual harassment is a commander’s responsibility.  The section on sexual harassment was considerably expanded with the current version of the regulation dated 15 July 1999.  It states that commanders will continuously assess and be aware of the climate of command regarding sexual harassment and identify problems or potential problems.  It addresses the Equal Opportunity/Sexual Harassment Complaint Processing System.  It states that an informal complaint is any complaint that a soldier does not wish to file in writing.  An informal complaint is not subject to time suspension nor is it reportable (formal complaints will be reported within 72 hours to the first general court-martial authority in the chain of command).  It is recommended that anyone working on the resolution of informal complaints should prepare a memorandum for record (MFR).  The regulation further states that the commander must eliminate underlying causes of all complaints.  In the section discussing formal complaints, the regulation states that an unsubstantiated complaint is one for which the preponderance of the evidence does not support and verify that the alleged unlawful discrimination or sexual harassment occurred.  In this situation, the commander should determine whether the allegation, though unsubstantiated, might be indicative of problems in the unit which require resolution through EO initiatives or other leadership action.

Army Regulation 600-20 also states that commanders at all levels of command are responsible for ensuring proper delegation of authority to noncommissioned officers (NCOs).  Commanders will define the responsibility and authority of their NCOs to their staffs and subordinates.  A CSM carries out policies and standards and advises the battalion or higher-level commander on the performance, training, appearance, and conduct of enlisted soldiers.  However, it also states that commanders are responsible for everything their command does or fails to do.  Commanders delegate sufficient authority to soldiers in the chain of command to accomplish their assigned duties and commanders may hold these soldiers responsible for their actions.

Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER.  It states 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.  It states that statements from rating officials often reflect retrospective thinking, or second thoughts, and appealing an evaluation report on statements from rating officials claiming that they did not intend to evaluate as they did will not, alone, serve as the basis for altering or withdrawing an OER.  

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 concludes that no error or injustice has occurred in this case.

2.  The Board acknowledges that the applicant had taken disciplinary action against instructors and others when misconduct was brought to his attention.  However, the Commander, TRADOC noted that the misconduct that occurred during his leadership of the battalion indicated a widespread failure by the cadre in the battalion to adhere to the most basic standards in dealing with soldiers in training.  He rightfully expected the applicant to involve himself personally in eliminating the underlying causes of all the complaints and problems in an attempt to prevent them rather than punish them after the event.  The Commander, TRADOC evidently felt the applicant failed to perform up to his expectations.  

3.  As to the specific incident of DS S___’s misconduct, the Board notes the Commander, TRADOC’s accusation that the applicant never read the written results of the investigations and the applicant’s response that he was unaware of the written EO reports.  The Board notes the applicant’s contention that the brigade EO advisor never mentioned to him any concerns about improper conduct by DS S___ and he saw and spoke with her every week at brigade staff call.  However, the Board concludes that these rebuttals support the Commander, TRADOC’s contention that the applicant abdicated his responsibilities to his CSM.  Considering the history of similar problems in his unit, it would have been reasonable for the applicant to have approached the two EO advisors personally for their perceptions of the incident rather than to rely solely on his CSM or to wait for the brigade EO advisor to approach him.

4.   The Board understands the applicant’s position that it should not be presumed that the “curtain” would have closed around DS S___ if CID had investigated the EO issues.  However, it would have blunted any perceptions of official indifference to misconduct in the media, in the higher command, or, more importantly, in the minds of the trainees for whom he was responsible had such an investigation been initiated in November 1995 instead of in September 1996.
It was the applicant’s responsibility as a commander to make every effort to avoid such misperceptions.

5.  The Board notes the Commanding General of the U. S. Army Ordnance Center and School, APG’s statement that the GOMOR and the OER based on the GOMOR should be removed from the applicant’s OMPF and that the OER was based to a significant degree on the GOMOR.  However, it was his responsibility, as the applicant’s senior rater, to prepare the OER with his considered opinion and objective judgment at the time of preparation.  It was his decision to wait until 3 February 1998 to prepare his portion of the OER; it was his decision to rate the applicant as he did.  His current statement is an instance of retrospective thinking.  The Board concludes that it is insufficient to grant the relief requested.

6.  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

___jh___  __dph___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2000050444	
SUFFIX		
RECON		
DATE BOARDED	20010313	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.	134.01	
3.		
4.		
5.		
6.