BOARD DATE: 15 June 2017 DOCKET NUMBER: AR20160016308 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 BOARD DATE: 15 June 2017 DOCKET NUMBER: AR20160016308 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ______________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. BOARD DATE: 15 June 2017 DOCKET NUMBER: AR20160016308 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 removal of his DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 12 July 2012 through 11 July 2013 from his record in its entirety. 2. The applicant states: a. The basis for removal of the OER from his record is substantive inaccuracies and administrative errors. b. The OER erroneously shows a starting date of 12 July 2012 instead of 13 July 2012. The OER starting date should reflect the day following the preceding OER "THRU" date. This administrative error should be corrected. c. His rating officials were not authorized to evaluate his performance under the provisions of appendix E of Army Regulation (AR) 623-3 (Evaluation Reporting System). Paragraph E-1(d) of AR 623-3 requires that OERs for Medical Corps officers be written by officers who are responsible for the supervision of the rated officer's continuing medical education. Subparagraph  (d)(1) specifically states, "Commanders will designate as rating officials those staff officers directly responsible for the education program of the rated officer at the lowest practical level." In this case, his rater was Major (MAJ) S____ S____, the Battalion Executive Officer (XO). This officer is not a member of the Medical Corps, nor was he in any way responsible for managing his medical education program. d. The senior rater knew of this requirement, but did not follow it. Previous unsigned editions of this OER named MAJ C____, the Brigade Surgeon, as the intermediate rater, but he refused to sign the report. e. Enclosure 2 is a statement that MAJ C____ made in an AR 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation in which he states, "I just saw his OER as his unit asked me if I wanted to sign as the intermediate rater, but I declined since I didn't have any interaction with him." f. The lack of a Medical Corps officer in his rating chain is a fatal defect that requires rescission of the report. g. LTC I____ commented on unsubstantiated allegations as though they were facts; an investigation by eyewitnesses showed that no such offences took place. AR 623-3, paragraph 3-19, addresses comments pertaining to unproven derogatory information. h. The allegations which were stated in the OER were presented to an Officer Board of Inquiry on 15 March 2016. After a full hearing on the merits, the board did not find any of the allegations were supported by the evidence and recommended his retention in the Army. The board's findings and recommendations are provided in the supporting documents. 3. The applicant provides copies of the: * contested OER * 28 June 2013 DA Form 2823 (Sworn Statement) * Officer Board of Inquiry Summary of Proceedings, dated 15 March 2016 (4 of 12 pages) CONSIDERATION OF EVIDENCE: 1. The applicant was commissioned on 28 June 2007 and he was appointed as a U.S. Army Reserve Medical Corps officer on 28 April 2008. 2. Effective 14 December 2011, he resigned from General Surgery Research residency training and was reassigned as a general medical officer. 3. On 18 January 2013 while assigned as the flight surgeon and medical oversight officer for the 3rd Battalion, 158th Aviation Regiment, in Germany, he was named in a sexual assault incident. 4. The case was investigated by the U.S. Army Criminal Investigation Command, which found probable cause for command action. During the investigation, the applicant declined to offer a statement in his own behalf, invoking his right to remain silent. 5. On 1 May 2013, the applicant received a general officer memorandum of reprimand (GOMOR) for committing wrongful sexual contact and assault consummated by battery, and conduct unbecoming an officer and a gentleman. The imposing officer stated, "Given the egregious lack of moral fiber, self-control and respect for others you demonstrated on 18 January 2013, I question whether you should be entrusted with leading Soldiers or caring for patients in the future." 6. The applicant submitted a rebuttal to the allegations; however, his statements were not found to contain any new or mitigating information and his entire chain of command concurred that, due to the nature of the incident, filing the GOMOR in his Official Military Personnel File (OMPF) was appropriate. 7. On 5 June 2013, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for violation of: a. Article 120, by engaging in wrongful sexual contact, to wit: placing his hands on the buttocks, breast, and inner thigh of E____ A. S____, causing bodily harm upon her; b. Article 128, by unlawfully wrapping his arms around E____ A. S____, placing her in a bear hug; c. Article 134, by orally communicating certain indecent language to E____ A. S____, to wit: "Let's just do it; I want to be in you; I am going to whip it out," or words to that effect, which conduct was to the prejudice of good order and discipline in the Armed Forces and was of a nature to bring discredit upon the Armed Forces; and d. Article 133, engaging in sexual contact, to wit: placing his hands on the buttocks, breast, and inner thigh of E____ A. S____ and orally communicating to E____ A. S____ certain indecent language, to wit: "Let's just do it; I want to be in you; I am going to whip it out," or words to that effect, which was conduct unbecoming an officer and a gentleman. e. The imposed punishment was restriction to the limits of the company area, dining/medical facility, place of duty, and place of worship for 30 days, suspended, to be automatically remitted if not vacated before 3 December 2013. 8. The applicant appealed the NJP. A DA Form 2627 (Record of Proceedings under Article 15, UCMJ) shows the court-martial convening authority granted the applicant partial relief on 19 July 2013 by holding that the findings of guilt for the violation of Article 120 and Article 134 of the UCMJ would be set aside and those charges were dismissed. The findings of guilty as to the violations of Article 128 and Article 133 of the UCMJ, the imposing commander's filing determination, and the punishment imposed were approved. 9. The contested OER covers the period of service from 12 July 2012 through 11 July 2013 and was finalized by the battalion commander on 21 March 2014. This OER shows in: a. Part IVa5 (Performance Evaluation – Professionalism) (Respect), the rater marked "No." b. Part V (Performance and Potential Evaluation), the rater marked "Unsatisfactory Performance, Do Not Promote" with the following comments: [Applicant's] performance during this period was substandard, and warrants a lower 10% of captains I have rated and served with during my Army career. Found on charges of violating the Army's Sexual Harassment and Assault policies, his poor judgment and behavior outside of the performance of his duties and responsibilities have precluded him from actively contributing as a care provider to this organization. It has further eroded the confidence of this leadership in his ability to return to the trusted position of providing medical care to Soldiers and their Families. While the Army has placed a significant investment into this officer's education, his behavior suggests that he lacks the judgment and maturity to return that investment in the manner the Army requires. Likewise, I assess [Applicant] as having limited potential to continue to serve and do not recommend promotion. c. Part VII (Senior Rater) is marked "Do Not Promote" with the following comments: [Applicant] exercised extremely poor judgment by conducting himself in a manner that is unbecoming of an officer and not in keeping with the Army's policies with regard to sexual harassment and sexual assault. His unacceptable behavior occurred shortly after arrival to this organization and precluded him from performing his duties as a health care provider during this rating period. [Applicant] possesses minimal potential for continued service. Do not promote. The Rated officer refused to sign. d. Part VIIb (Potential Compared with Officers Rated in Same Grade), the senior rater marked "Below Center of Mass, Do Not Promote." 10. The applicant was reassigned to the 12th Combat Aviation Brigade in Germany during the rating period 12 July 2013 through 18 December 2013. This OER shows in: a. Part V, the rater marked "Satisfactory Performance, Promote" with the following comments: [Applicant's] performance was mostly satisfactory this rating period. Limited by his inability to perform duties as a Flight Surgeon for the Brigade due to not being credentialed in the health care facility, he was never fully able to integrate into the daily operations of the Brigade staff or contribute to the medical readiness of the Brigade. [Applicant] worked to juggle the demands of a very difficult personal and professional situation with the demands of remaining an integral member of the Army team. [Applicant] possesses limited potential for future service with the Army given an appropriate environment. [Applicant] has contributed to the fair, respectful treatment of assigned personnel and has contributed to establishing a workplace that fosters dignity and respect for all members of the group. The rated officer initiated a Multi-Source Assessment and Feedback/360 as required by AR 350-1.. b. Part VIIa, the senior rater marked "Fully qualified" with the following comments: [Applicant's] adequate performance this rating period was overshadowed by his inability to perform his required duties as a health care provider. Recent personal demands have not allowed this officer to execute his assigned missions. [Applicant] possesses limited potential for continued service. The unit has contacted the Rated officer on multiple occasions and he disagrees with the credentialing statement in the rater portion of the OER, but has refused to submit written comments. The Rated officer refused to sign. c. In Part VIIb, the senior rater marked "Center of Mass." 11. The applicant's interactive Personnel Electronic Record Management System file contains limited information as to the applicant's service between the end of the aforementioned rating period and 2015, and no OER's are of record. 12. On 6 May 2015, the applicant was removed from the Fiscal Year 2013 Major, Army, Medical Corps, Promotion Selection List. 13. On 15 March 2016, an Officer Board of Inquiry was convened to determine if the applicant should be separated from the Army for misconduct. The board found: a. Substantiated derogatory activity resulting in a 1 May 2013 GOMOR, as annotated in the initiation of elimination memorandum, dated 20 March 2014, is not supported by a preponderance of the evidence. The substantiated derogatory activity does not warrant separation based on the evidence in the GOMOR. b. Substantiated derogatory activity resulting in the 5 June 2013 Article 15, as annotated in the initiation of elimination memorandum, is not supported by a preponderance of the evidence. The substantiated derogatory activity does not warrant separation based on the evidence in the Article 15. c. The offense of conduct unbecoming an officer is not supported by a preponderance of the evidence. The offense of conduct unbecoming an officer does not warrant separation based on the evidence in the GOMOR. d. The offense of conduct unbecoming an officer as indicated in the Article 15, is not supported by a preponderance of the evidence. The offense of conduct unbecoming an officer does not warrant separation based on the evidence in the Article 15. 14. Neither the initiation of elimination memorandum nor a complete copy of the Board of Inquiry Proceedings were provided by the applicant or included in his available records. 15. On 11 December 2016, the applicant retired by reason of temporary disability (enhanced) and was placed on the Temporary Disability Retired List. REFERENCES: 1. AR 623-3 prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. It provides that: a. In the referral memorandum, the rated officer will be advised that his or her comments do not constitute an appeal or request for a commander's or commandant's inquiry. b. Failure to comply with any or all support or counseling requirements will not constitute the sole grounds for appeal of an evaluation report. c. Any mention of unproven derogatory information in an evaluation report can become an appealable matter if later the derogatory information is unfounded. d. The rated Soldier's comments do not constitute an appeal. Appeals are processed separately, as outlined in chapter 4. e. For evaluation reports that have been completed and filed in a Soldier's OMPF, substantive appeals will be submitted within 3 years of an evaluation report "THRU" date. Administrative appeals will be considered regardless of the period of the evaluation report. f. An evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to: * be administratively correct * have been prepared by the proper rating officials * represent the considered opinion and objective judgment of the rating officials at the time of preparation g. An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered. h. Alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board. i. Substantive appeals will be submitted within 3 years of an evaluation report "THRU" date. Failure to submit an appeal within this time will require the appellant to submit his or her appeal to the Army Board for Correction of Military Records (ABCMR). j. The burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that: (1) the presumption of regularity referred to in paragraphs 3-36a and 4-7a will not be applied to the evaluation report under consideration; (2) action is warranted to correct a material error, inaccuracy, or injustice; and (3) clear and convincing evidence will 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 the assertions, the clear and convincing standard has been met with regard to those assertions. k. Appendix E pertains to the evaluation of U.S. Army Medical Department residents, interns, and fellowship students, not staff officers. 2. AR 15-185 (ABCMR) states the ABCMR will decide cases on the evidence of record; it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The beginning date of the OER appears to be a clerical error; however, this has no impact on the assessments recorded in the applicant's evaluation and is not a substantive error in processing of the OER. 2. The applicant provided no evidence to show the allegations against him were unfounded. The Elimination Board Proceedings and the differing opinion for the imposing officer do not conclusively demonstrate the allegations were unfounded. The elimination board found the applicant's substandard derogatory activity did not warrant separation processing. 3. The applicant's statement that the witness did not see any inappropriate actions does not mean the actions did not occur. 4. The regulatory provisions cited by the applicant relating to his claim of an improper rating chain pertain to evaluations of residents, interns, and fellowship students, not staff medical officers. The absence of a Medical Corps officer in his rating chain does not appear to be a material error, inaccuracy, or injustice. 5. Although the Board of Inquiry recommended his retention in the Army, this board was not convened to re-adjudicate his guilt or innocence relative to the NJP and reprimand he received. The Board of Inquiry convened for the simple purpose of reviewing his records and making a recommendation on whether he should be retained. 6. The governing regulation requires clear and convincing evidence of a strong and compelling nature to prove the possibility of an administrative error or factual inaccuracy in an OER to amend or remove the OER from the Soldier's record. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160016308 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160016308 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2