IN THE CASE OF: BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20160005201 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X____ ___X____ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20160005201 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 to amend the decision of the ABCMR set forth in Docket Number AR20140012860 on 5 November 2014. _____________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. IN THE CASE OF: BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20160005201 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 reconsideration of his earlier request for: * removal of his DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 6 May 2010 through 5 May 2011 from his Official Military Personnel File (OMPF) * removal of a general officer memorandum of reprimand (GOMOR), dated 8 July 2011, from his OMPF 2. The applicant also request a personal appearance before the Board. 3. The applicant states: a. He now has a notarized statement from Captain (CPT) JLP, dated 6 August 2013, explaining the events that occurred in September 2010. CPT JLP was a company commander of a Forward Support Company in the 1st Heavy Brigade Combat Team (BCT), 2nd Infantry Division, Korea. He (the applicant) also wants the Board to reconsider the sworn statement submitted by CPT KEB (CPT KEB another officer assigned to the 302nd Brigade Support Battalion who provided a sworn statement during the investigation; she is also a sister to Ms. LMG, a civilian school teacher) as proof of his knowledge and is similar to the sworn statements he previously submitted. b. The governing regulation allows for the transfer and removal of a GOMOR after it has served its purpose and for the OER after he has received at least one OER since its filing. The Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) investigation was initiated in reference to him assisting in the violation of a no-contact order given to CPT JLP due to CPT JLP's inappropriate relationship with Ms. LMG, the civilian school teacher. The investigating officer (IO) could not confirm that he (the applicant) gave both CPT JLP and Ms. LMG a ride in his vehicle. The IO sides with Ms. LMG's account of what occurred in 2010. He (the applicant) asserts that he did not know of the relationship between CPT JLP and Ms. LMG. Additionally, Ms. LMG's biological sibling, CPT KEB, provides a sworn statement in which she addresses his (the applicant's) knowledge of her sister's relationship with CPT JLP. 4. The applicant provides a notarized statement dated 6 August 2013 from CPT JLP (CPT JLP was dismissed from the Army in 2013 following a general court-martial conviction related to the incident). CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140012860 on 5 November 2014. 2. The applicant submits a statement that was not previously considered by the Board. 3. Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 12 December 1997. He entered active duty on 5 January 1998 and completed the Infantry Officer Basic Course. 4. He served in a variety of stateside or overseas assignments including Kosovo and Iraq. He was promoted to CPT on 21 April 2003 and to major (MAJ) in the Regular Army on 2 October 2007. At the time of his incident, he was assigned to Headquarters and Headquarters Company, 1st Battalion, 72nd Armor, Camp Casey, Korea, as the Battalion Executive Officer (XO). 5. On 17 March 2011, an AR 15-6 investigation commenced to determine whether the applicant facilitated communication between CPT JLP and a female civilian and whether the applicant knew of the no-contact order issued to CPT JLP. On 1 April 2011, the IO found: a. The applicant did not intentionally serve as a third party to facilitate communications between CPT JLP and the civilian or knowingly assist CPT JLP in violating a no-contact order issued to the CPT on 14 December 2010. The applicant was not aware of the no-contact order. b. The applicant did not allow CPT JLP to use his telephone to call his family back in the United States in December 2010. CPT JLP did not use that telephone to contact the civilian. The IO found that is how the civilian obtained the applicant's personal telephone number. CPT JLP made a false statement to the applicant by stating he would use the telephone to contact his family back home. c. When the no-contact order was given on 27 January 2011, he did not violate that order. The civilian specifically stated he avoided her at a social function on 12 February 2011 after she attempted to get his attention. d. The applicant denied all communications with the civilian. However, she stated that she had talked to him at least once and received a text from his personal cellular phone. The IO confronted the applicant in a follow-up interview referencing the contact with the civilian and he denied the conversation and text exchange ever happened. e. The civilian claimed the applicant gave her and CPT JLP a ride back from Camp Humphreys to Uijeongbu over Labor Day weekend in 2010. The applicant denied that as well in a follow-up interview. f. Regardless of the alleged contact via conversation or text, the applicant did not knowingly discuss any part of the previous investigation against CPT JLP or attempt to coerce the civilian to make any false statements regarding that investigation. The context of the alleged conversation was in response to a possible suicide ideation that CPT JLP had made to his family. g. The IO also found the fraternity that both the applicant and CPT JLP are members of may contribute to an improper senior-subordinate relationship. In addition, the fraternity had numerous social events with other organizations which place senior and subordinate officers in social settings. The civilian claims the applicant was aware of the type of relationship she had with CPT JLP. The applicant denied knowing the extent of the relationship while it was going on. 6. The IO recommended: a. In any future Article 15 or court-martial, CPT JLP be charged with violating the no-contact order. b. Scheduling a leader development class to focus on the conduct of officers as members of non-military organizations. c. Counseling of the applicant by his rater on his responsibility and duty as an officer to ensure that conduct of subordinate officers is keeping with the finest traditions of military service, whether on duty or off duty. The IO did not have any substantial evidence that the applicant was complicit in this case, but his proximity to the situation placed him in a difficult position as senior officer regarding the perception of wrongdoing. 7. A memorandum from the Brigade Judge Advocate to Commander, 1st BCT, 2nd Infantry Division, dated 29 April 2011, stated the AR 15-6 investigation was legally sufficient and that although it was a matter collateral to the subject of the investigation, doubt remained about what happened on Labor Day weekend in 2010. The Brigade Judge Advocate opined that by a preponderance of the evidence, the applicant made a false official statement to the IO in denying that he had ever spoken with the female civilian, given her a ride in his vehicle at any time, or known of any type of relationship between CPT JLP and her. 8. On 8 July 2011, by memorandum to the Commanding General (CG), 2nd Infantry Division, the Acting Staff Judge Advocate (SJA) stated: a. On 17 March 2011, an AR 15-6 investigation commenced and on 24 March 2011, the applicant was interviewed and denied that he had ever spoken with the female civilian, given her a ride in his vehicle at any time, or knew of any type of relationship between CPT JLP and the female civilian. b. On 29 March 2011, the female civilian stated she had talked to him at least once and received a text message from him. She also stated the applicant gave her and CPT JLP a ride to Uijeongbu from Camp Humphreys over the Labor Day weekend. During the ride, she stated she had a conversation with the applicant and he dropped both her and CPT JLP off at their apartment. c. He also attended many of the same fraternity events that CPT JLP and the female civilian attended. At these events, CPT JLP and the female civilian's intimate relationship was easily observable as demonstrated by photographs. The applicant did not, however, knowingly aid CPT JLP to violate the no-contact order. d. The chain of command recommended that the CG initiate a GOMOR and a general officer Article 15 for the applicant. The SJA recommended that the CG initiate a GOMOR for the applicant. 9. On 8 July 2011, the CG, 2nd Infantry Division, reprimanded the applicant for making a false official statement during an AR 15-6 investigation. The GOMOR stated that he made this false statement when the IO questioned him about an alleged inappropriate relationship between CPT JLP and a civilian. During the course of the investigation, he denied ever having spoken with the civilian, denied giving her a ride in his vehicle at any time, and denied having knowledge of any type of relationship between the officer being investigated and the same civilian. However, the civilian gave a detailed account of how he had communicated with her in the past, how he gave her a ride in his vehicle, and how he knew of her relationship with the same officer. He acknowledged receipt but elected not to submit any matters in his own behalf. 10. His battalion and brigade commanders recommended permanent filing of the GOMOR in his OMPF. His senior commander opined that permanent filing was exactly what this action needed. He had no qualms or hesitation on this one. 11. On 25 August 2011, after reviewing the reprimand and the chain of command's recommendations, the CG directed permanently filing the GOMOR in the applicant's OMPF. 12. The applicant received the contested OER, an annual OER covering 12 months of rated time from 6 May 2010 through 5 May 2011 for his duties as the Battalion XO for the 1st Battalion, 72nd Armor Regiment. His rater was Lieutenant Colonel KTS, the Battalion Commander; and his senior rater was Colonel RED, the Brigade Commander. The OER shows in: a. Part IId, an "X" is placed next to the question "This is a referred report, do you wish to make comments?" and another "X" is placed next to the answer "Yes," indicating the rated officer desired to attach comments. b. Part IVa (Performance Evaluation – Professionalism), the rater placed an "X" in the "No" block for "Integrity" and an "X" in the "Yes" blocks for the other 6 values. Additionally, in Part IVb (Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" blocks to selected attributes, skills, and action. c. Part Va (Performance and Potential Evaluation- Evaluate the Rated Officer's Performance During the Rating Period and His/her Potential for Promotion), the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block and entered the following rating in Part Vb (Comment on Specific Aspects of the Performance): Another superb performance from the most tenacious and effective Executive Officer I have served with in over 20 years of service. [Applicant] spent the past twelve months leading my Staff through high [operational tempo] and personal [sic] turnover, and the results were impressive. [Applicant] delivered by focusing attention on Staff systems that allowed me to 'see ourselves' and make adjustments where necessary. Because of his accomplishments, I commanded the battalion and held weekly Commander Meetings in lieu of a Command and Staff meeting. This paid huge dividends in managing our most critical resource – time. Unfortunately, during this rating period, [Applicant] clearly demonstrated a lack of integrity. This caused me to lose confidence in him as a leader and reevaluate his overall potential for service at positions of greater responsibility. Because of this action, I do not believe we should promote [Applicant] to Lieutenant Colonel. d. Part Vc (Comment on Potential for Promotion), his rater stated, "Officer does not have potential for promotion to the next higher grade.” e. Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in "Do Not Promote," in Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) his senior rater indicated "Below Center of Mass-Retain," and in Part VIIc, his senior rater stated: Absolutely brilliant performance by one of the top field grade officers in the BCT. [Applicant] was instrumental in creating and sustaining unmatched combat readiness systems that ensured his Armor battalion achieved excellence in the areas of maintenance and deployment readiness. He consistently demonstrated tactical prowess and the ability to rapidly solve complex problems. He portrayed all the attributes the Army seeks when selecting future battalion commanders. Unfortunately, he revealed a flaw in character that is inconsistent with our values and preclude [sic] any further consideration for advancement. I no longer endorse [Applicant] for positions of authority or responsibility that demand integrity, and the ability to make moral and ethical decisions under duress. Great potential to continue to serve in senior staff positions that can leverage his impeccable technical and tactical skills. 13. The OER was referred to the applicant for comments. He provided matters for consideration and stated: * he accepted the command's loss of confidence and fully understood the perception of misplaced loyalty based on how he handled the situation; however, the conclusion of his lack of integrity was based on hearsay and perception, it was not proven * both his rater and senior rater rated his performance as exceptional throughout the rating period, and until this incident his performance, integrity, values, and character had not been in question * his loyalty lies in serving our country; he is a career Soldier who has committed his life to the Army and country; a rating of "do not promote" would derail his career of 13 outstanding years 14. The OER was signed by his rater and senior rater on 5 November 2011 and by the applicant on 23 November 2011. It was posted to his records at Headquarters, Department of the Army (HQDA), with his rebuttal statement, on 7 December 2011. 15. On 24 October 2013, the DA Suitability Evaluation Board (DASEB) determined the overall merits of the applicant's case did not warrant removal of the GOMOR; however, the evidence submitted was sufficient to warrant partial relief by transferring the GOMOR to the restricted portion of the applicant's OMPF. The DASEB determined this action was not to be considered retroactive and did not constitute grounds for promotion and ordered the Record of Proceedings and allied documents be filed in the restricted portion of his OMPF. 16. In December 2013, a Field Board of Inquiry (FBOI) was conducted. The applicant and three witnesses (a colonel, who was a character witness and did not mention the incident in question; a civilian, who was a character witness and did not mention the incident in question; and the applicant's wife, who was a character witness and stated she did not know the facts of this case) testified on his behalf. It appears the officer (CPT JLP) who the applicant testified that it appears the woman in question confused him with and the civilian in question did not testify at the hearing. The FBOI found: * the allegation of making a false official statement resulting in a referred GOMOR and a referred OER was not supported by a preponderance of evidence * the allegation of conduct unbecoming an officer was not supported by a preponderance of the evidence * the findings do not warrant separation 17. The FBOI recommended his retention in the Army without reassignment. On 14 January 2014, the approval authority approved the FBOI's findings and recommendations. 18. On 20 March 2014, the Officer Special Review Board (OSRB) denied his request to remove the contested OER from his OMPF. The board determined the overall merits of his case did not warrant the requested relief. 19. On 5 November 2014, the ABCMR denied his petition for the removal of the contested OER from the performance folder of his OMPF and the contested GOMOR from the restricted folder of his OMPF. 20. He provides a notarized statement, dated 6 August 2013 from CPT JLP who states: * the applicant did not make a statement on his behalf that would have changed the outcome of the AR 15-6 * he regrets that his own actions impacted a fellow officer's career who had no knowledge of his personal affairs; he (the author) was suspended from his command because he was having an extramarital affair with a civilian * during the investigation, he had many conversations with others concerning his future, his service, and his wife, but he did not discuss personal business with the applicant * at no time did the applicant know that he was involved with another woman and he had no knowledge of the no-contact order * just before the applicant left Korea, he (the author) learned that the applicant was receiving a GOMOR for knowing about the relationship and not bringing it to the attention of the command * he did not deserve the punishment; on the contrary, he is a mentor and a coach, and he should not have been implicated * the GOMOR should be removed from his records so he may continue serving our country REFERNCES: 1. AR 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF. It states letters of reprimand and DA Forms 67-9 will be filed in the performance section of the OMPF. 2. AR 623-3 (Evaluation Reporting System) states an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF 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 rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. 3. AR 600-8-24 (Officer Transfers and Discharges), paragraph 4-15b(3), states a Board of Inquiry may not recommend removal of documents such as OERs, Article 15s, and memoranda of reprimand from an officer's OMPF. The board recommendations are limited to either retention (with or without reassignment) or elimination. 4. AR 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. Chapter 7 contains guidance on removal of unfavorable information from official personnel files. It states appeals and petitions for removal of unfavorable information are to be directed to the DASEB. It further states that 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. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. It also provides guidance for appeals for transfer of OMPF entries and states that these appeals may be based on proof that the documents in question have served their intended purpose and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. 5. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. 2. The applicant was serving in Korea as a battalion XO in 2010. An official AR 15-6 investigation determined that he made a false official statement. As a result, he received a GOMOR for making a false official statement. This misconduct was the basis for the contested OER. The OER remains filed in the performance folder of his OMPF while the GOMOR was transferred from the performance to the restricted folder at the direction of the DASEB. 3. With respect to the GOMOR: a. The evidence of record confirms the GOMOR was properly processed and filed in the applicant's OMPF in accordance with the applicable regulation. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the GOMOR process. b. By regulation, 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. To support alteration or removal of the document from the OMPF, an individual has the burden to provide clear and convincing evidence that the document is untrue or unjust, in whole or in part, to support its removal from the OMPF. The applicant has not met the regulatory burden of proof. c. The investigation clearly established that he made a false statement given that he denied knowing her or her relationship with CPT JLP despite the fact that at various events, CPT JLP and the female civilian's intimate relationship was easily observable as demonstrated by photographs and/or unit social functions. d. The statement provided by CPT JLP was carefully considered. However, this is considered retrospective thinking and this statement appears to be in response to CPT JLP's efforts to lessen the damage to the applicant's career. Furthermore, the sworn statement provided by CPT B was considered during the AR 15-6 and was also considered during the Board's original decision. There is no reason to revisit that statement. e. The burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. The record reflects the applicant was provided the information on which the GOMOR was based. The record also reflects he declined to respond to the GOMOR. As a result, there is no evidence showing any error or injustice related to the issuance of the GOMOR or its filing in the OMPF. f. The quality of service of a Soldier is adversely affected by conduct that is of a nature to bring discredit on the Army or prejudicial to good order and discipline. As such, there is generally a reluctance to remove or transfer adverse information from an OMPF when it places the applicant on a par with others with no blemishes for promotions, assignments, and other favorable actions. Additionally, when a GOMOR serves its purpose, it is normally transferred to the restricted folder of the OMPF. This has already been done in his case. 4. With respect to the OER: a. The OER contains a listing of the Army values and the dimensions of the Army’s leadership doctrine that define professionalism for the Army officer and apply across all grades, positions, branches, and specialties. They are needed to maintain trust, confidence, and the qualities of leadership and management needed to sustain an effective officer corps. These values and leader attributes/skills/actions are used to emphasize and reinforce professionalism. They are considered in the evaluation of the performance of all officers. b. The evidence of record shows the applicant was reprimanded for making a false official statement. That triggered an "X" in the "No" block for the integrity value. An OER is a measure of an officer's performance and potential during a period of time. In the applicant's case, the contested OER appears to be correct. There is no evidence, and the applicant has provided none, to show that his rater and senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner. c. One of the steps in the redress system is the referral process including a Soldier’s opportunity to comment on the referred OER. The record reflects he commented on the referred OER and accepted the command's loss of confidence and fully understood the perception of misplaced loyalty based on how he handled the situation. Additionally, there is no evidence in the record that he requested a commander’s inquiry as provided in chapter 6 of AR 623-3. d. By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature. e. The applicant did not provide sufficient evidence to overcome the "presumption of regularity" and to justify removing the contested OER from his OMPF. After a comprehensive review of the evidence in his OMPF, the applicant’s contentions and arguments, and the evidence submitted in support of his application, other than his dissatisfaction, the applicant did not show, by clear and convincing evidence, that the contested OER contains a material error, inaccuracy, or injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005201 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005201 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2