IN THE CASE OF: BOARD DATE: 26 April 2011 DOCKET NUMBER: AR20110002285 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: a. The removal of all negative information from his Change of Rater (CR) Officer Evaluation Report (OER) for the period 8 October 2005 through 14 September 2006 and change the senior rater block to reflect a rating of Above Center of Mass (ACOM). b. Removal of the Relief for Cause (RFC) OER for the period 15 September through 11 October 2006 from his official military personnel file (OMPF). c. Removal of the General Officer Memorandum of Reprimand (GOMOR), dated 28 September 2006, and allied documents, from his OMPF. d. Promotion consideration to colonel (COL) by a Special Selection Board (SSB) empowered to give him a date of rank retroactive to the date of the first board that could have promoted him. e. A personal hearing. 2. The applicant states, in effect, the CR OER is without merit as it is unfair and inaccurate for the reasons he supplied to the Department of the Army Inspector General (DAIG) and the Officer Special Review Board (OSRB). 3. He states the RFC OER and the GOMOR rested on the same faulty premise and misconduct that allegedly occurred prior to the rated period in Iraq. 4. He also states the OSRB, which reviewed the contested OERs, and the Department of the Army Suitability Review Board (DASEB), which reviewed the contested GOMOR, both arrived at erroneous conclusions. He believes the hundreds of pages of documents he submitted to both boards should be sufficient to prove a grave injustice occurred in his case. The OSRB's findings were inadequate or false as it appears this board did not fairly read the matters he presented. The DASEB's findings were inadequate as it appears this board abused its discretion. 5. The applicant also states the investigating officer (IO) who investigated the Equal Opportunity (EO) complaint admitted she initially exonerated him but changed her conclusion based on coercion by the command. She also stated that his unit had a positive command climate and EO surveys. He adds the vehicle misuse allegations lacked merit based on the actual policies in place. In summary, he argues that the officers above him should have reviewed the available evidence differently and made different decisions. He also attacks both of the OERS and the GOMOR as being substantively untrue and argues his superiors should have made decisions which would have ultimately resulted in less of an impact on him. He also asserts that this Board should review the evidence and circumstances differently and use its power to substitute its decisions and judgments for the judgments of his superior officers. 6. The applicant provides: * DA Form 67-9 (OER), 8 October 2005 through 14 September 2006 * DA Form 67-9, 15 September 2006 through 11 October 2006 * GOMOR, dated 28 September 2006 * Self-Authored Statement and Affidavit * Two Sworn Affidavits * DVD of his submission to the DASEB and OSRB * DVD of tape transcriptions * OSRB Record of Proceedings (OERs) * DASEB Record of Proceedings (GOMOR) * Tape Transcription of COL E * Internet printout of Fort Polk, LA, news * Tape Transcription of Mr. LFW * Audio Transcription of captain (CPT) DPD * Tape Transcription of sergeant first class (SFC) S * Tape transcription of CPT DR * Audio Transcription of staff sergeant (SSG) MG * Tape transcription of an interview with Ms. CH * Tape transcription of a telephone conversation with LTC PBC * Three DA Forms 67-9 for the periods 29 March 2009 through 28 March 2010, 2 July 2008 through 28 March 2009, and 12 October 2007 through 1 July 2008 * Three Volumes containing Exhibit 1 through Exhibit 32 and enclosures CONSIDERATION OF EVIDENCE: 1. Having had prior service in the Army National Guard the applicant entered active Army service as a Military Police second lieutenant on 25 January 1989. He served in staff or leadership positions within and outside of the continental United States and attained the rank of lieutenant colonel (LTC) on 1 September 2004. He assumed duties as the Battalion Commander, 519th Military Police (MP) Battalion, Fort Polk, LA, on 25 June 2005. 2. The 519th MP Battalion, 49th MP Brigade, was deployed to Iraq from September 2005 through September 2006. The battalion commander redeployed with his unit, departed Baghdad on 23 September 2006 and arrived at Fort Polk, LA, shortly thereafter. 3. On 25 October 2005, an anonymous individual complained to the Fort Polk, LA, IG that the applicant had his driver pick him up at his residence every morning and drop him off at night. The complainant also alleged the applicant had his driver do all his personal errands such as taking his car to the auto dealer and getting it fixed. He also had Soldiers move personal property from his house. An IO was appointed in reference to the allegations. 4. On 13 February 2006, by sworn statement, the applicant confirmed that on occasions he did have his driver pick him up or drop him off and that he did utilize Soldiers and a government vehicle to move his personal property into storage after Hurricane Rita and prior to deployment. 5. On 8 March 2006, having completed the informal investigation, the IO found the applicant utilized his driver to pick him up and drop him off at his residence on a few occasions when the applicant's personal vehicle was in maintenance. The IO also found the applicant used Soldiers and military vehicles to move his personal and professional items into storage during the aftermath of Hurricane Rita and just prior to deployment. The IO recommended that the applicant be reprimanded by his brigade commander. 6. On 7 June 2006, while in Iraq, a lieutenant assigned to the applicant's battalion filed an EO complaint with the Multi-National Force-Iraq (MNC-I) EO Office. She (the lieutenant) alleged gender discrimination. She believed the applicant was biased against females and openly discriminated against them and that this behavior fostered a hostile and uncomfortable work environment for females. She believed the remedy should be the applicant's removal from command or at least he should be formally reprimanded for his actions, unfair treatment, and negative attitude towards females. 7. On 10 June 2006, an IO, LTC (now COL GEE), was appointed to conduct an informal investigation into the facts and circumstances surrounding allegations of gender discrimination and/or bias lodged as EO complaints against senior officers assigned to the 519th MP Battalion. 8. On 11 June 2006, the IO completed her investigation and found some indication of gender bias or perhaps a mildly anti-female bias present in the command climate of the 519th MP Battalion. All the female lieutenants assigned to this headquarters believed this to be the case and a number of male officers agreed. The IO stated she was unable to substantiate that the applicant treated females and males differently. She also stated "it is difficult for me to come to conclusion on whether to substantiate the lieutenant's claim against the applicant for gender discrimination. I have substantiated some of her allegations and refuted or been unable to substantiate others." Her conclusion was "I find the complaint substantiated gender discrimination." The IO recommended the applicant be given a GOMOR, that he be counseled by the brigade commander on professional conduct, and that the EO complainant remain in theater with the unit to restore the lieutenant's credibility. The brigade commander approved the findings and recommendations of the IO. The IO did find a "permissive" atmosphere where videos were shown during Battle Update Briefs (BUBs) sometimes crossed the line and were in bad taste. The videos at times, made fun of certain groups of people. 9. On 22 June and 7 July 2006, an EO advisor and senior EO advisor, both assigned to MNC-I, reviewed the IO's findings and both recommended that the applicant be relieved from command, counseled, reprimanded, and that the complainant remain with her unit. 10. On 10 July 2006, the brigade commander, COL RB, reviewed the IO's findings and recommendations and by memorandum to the Commander, MNC-I, he recommended that the applicant be issued a GOMOR to be filed in his permanent record. 11. On 17 August 2006, at Camp Victory, Iraq, the Deputy Commanding General (DCG), MNC-I Major General (MG) DAH issued the applicant a GOMOR for violating chapter 7, Army Regulation 600-20 (Army Command Policy). The GOMOR stated that an informal investigation revealed that sexual harassment permeated his command headquarters in the form of a hostile working environment and that he failed to identify this hostile environment and take prompt, decisive action to resolve it. Blinded by his friendship with his S-3, he ignored his anger management problem and his abusive treatment of others. Consequently, this hostile environment destroyed teamwork within the S-3 section and negatively impacted the morale of his entire staff. 12. The applicant's acknowledgement and/or his rebuttal are not filed on his OMPF. 13. On 24 August 2006, by memorandum to the CG, MNC-I, the applicant submitted an appeal of the substantiated EO complaint against him together with sworn statements, multiple character reference letters, letters of support, his summary of accomplishments, and various other documents related to this issue. He essentially contended the informal investigation was one-sided and primarily untrue and inaccurate. 14. On 12 September 2006, the CG, MNF-I reviewed the applicant's appeal to the investigation that arose from the EO complaint against him and denied the applicant's appeal. 15. In mid-September 2006, the applicant received the CR OER which covered 11 months of rated time from 8 October 2005 through 14 September 2006 for his duties as a battalion commander. His rater was COL RJB, the brigade commander, and his senior rater was MG DAH, the Deputy CG, MNC-I. The OER shows the following entries: a. In Part IVa (Performance Evaluation-Professionalism-Values), the rater placed an "X" in the "No" block for "Respect." b. In Part IVb (Performance Evaluation-Professionalism-Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block as appropriate; he did not mark any "No" entries. c. In Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Outstanding Performance - Must Promote)" block and entered appropriate comments in Part Vb, as follows: Outstanding battalion commander in a combat zone. [Applicant] skillfully planned, executed, and led police partnership and Iraqi Police Transition Team operations in the complex and dangerous urban environment of East Baghdad. A strong tactical leader, [Applicant] courageously conducted over 300 patrols while leading his Soldiers in the streets and police stations of Baghdad during Operation Free Speech, Scales of Justice, and Together Forward. His strong relationship with six brigade combat teams, 15 maneuver task forces, and dozens of Iraqi police leaders enabled him to implement and orchestrate a host of creative systems and programs to facilitate the logistical technology transfer, communications, leadership, training, and the protection of over 115 Iraqi police stations in 7 Districts. For his vision and operations skills, I chose him to lead Iraqi Police Transition for the entire city of Baghdad. The [Applicant] was the subject in a founded EO complaint for allowing the perception of gender bias. As a leader the [Applicant] must ensure his subordinates treat Soldiers and others with respect so as not to create a hostile work environment or erode the command climate. d. In Part VIIa (Senior Rater), the Senior Rater placed an "X" in the "Fully Qualified" block and entered the following comments: the [Applicant] has led his battalion to achieve great success in the difficult Iraqi police training mission. He has led from the front and has been responsible for police training in Eastern Baghdad which is Baghdad's toughest area. [The applicant] is the most technically and tactically proficient MP Commander that I know. He has personally made a difference in the Police Training Program with many of his ideas adopted for the theater. Unfortunately the [Applicant] had a formal EO complaint substantiated against him. While many issues were unintentional actions on his part there is some behavior modification required in his leadership actions and practices. The [Applicant] has another year in command and the opportunity to correct this behavior. If he takes the necessary corrective actions, he should be given the opportunity to serve as a COL. 16. On 28 September 2006, upon his return to Fort Polk, LA, by memorandum, the applicant's commander notified him of his temporary suspension of command and pending adverse action based on numerous incidents of poor judgment regarding the use of government vehicles and personnel for personal use and the investigation that substantiated allegations of a hostile work environment and gender bias. He was also notified that he would be considered for relief from command based on the results of these investigations. 17. Also, on 28 September 2006, the applicant was reprimanded by the CG, Joint Readiness Training Center (JRTC), Fort Polk, LA, for the use of active duty Soldiers and military equipment for unofficial purposes in violation of the Principles for Ethical Conduct for Government Officers and Employees. He was also reprimanded for the use of a government vehicle for his transportation from his domicile to his place of duty. 18. Furthermore, on 28 September 2006, the applicant acknowledged receipt of the GOMOR. He submitted a rebuttal in which he acknowledged that he was picked up from his domicile to his place of duty and that he had maintenance problems with his private vehicles. However, he stated: a. He was pressed against a rapidly closing deployment timeline and was further limited by the demands of the storage facility owner whose property was damaged and without power. b. He was left with only two choices, leave the property for the rear detachment to deal with or capitalize on the opportunity to secure his property in the rented storage facility. c. He believed his actions were conducted within the command guidance permitted to assist Soldiers whose lives and property were disrupted by the hurricane. 19. On 6 October 2006, by memorandum in response to his temporary suspension, the applicant indicated he disagreed with the conclusion of the IO that substantiated the EO complaint against him. He argued that while some aspects were true, the IO's findings and allegations were primarily untrue and inaccurate. Additionally, the investigation was incomplete; it failed to comply with governing regulation and it culminated in a one-sided view of the facts as well as a number of inaccurate findings or findings not otherwise supported by the evidence. 20. On 11 October 2006, consistent with the brigade commander's recommendation, and after careful consideration of the applicant's case and the rebuttal submitted by the applicant, the CG ordered the GOMOR filed in the applicant's OMPF. The GOMOR was initially filed in the performance section of the applicant's OMPF. 21. Also on 11 October 2006, and after reviewing all statements and related documents submitted in his rebuttal to the temporary suspension and notification of the proposed adverse action, the applicant's commander relieved him from his position for cause. The commander relieving him stated that due to the applicant's lack of judgment and the command climate, he (the commander) had lost trust and confidence in his (the applicant's) ability to command his battalion. 22. On 8 November 2006, after the CR OER was referred to the applicant, he submitted a rebuttal wherein he stated that as a commander, he was responsible for everything that happened or failed to happen while deployed in East Baghdad. He added that he should have recognized that his operations officer created a hostile environment and that he was so operationally focused that he did not recognize what was happening. He also stated that this failure was his and his alone. As for the founded EO complaint, he stated that while he was on leave, his headquarters handled an investigation for officer misconduct against a female platoon leader badly. Having lost confidence in her, he decided to send her home. 23. The CR OER was signed by rating officials, and the applicant, and processed at the U.S. Army Human Resources Command (HRC) on 19 December 2006. This OER is currently filed together with the applicant's rebuttal in the performance section of the applicant's OMPF. 24. In October 2006, the applicant received the RFC OER which covered 1 month of rated time from 15 September through 11 October 2006 for his duties as a battalion commander of Corps Combat Support MP Battalion (519th MP Battalion), Fort Polk, LA. His rater was COL JMM, the brigade commander, and his senior rater was brigadier general (BG) DPB, the CG, JRTC, Fort Polk. The OER shows the following entries: a. In Part IVa, the rater placed an "X" in the "No" block for "Honor" and "Duty." b. In Part IVb, the rater placed an "X" in the "No" block for the "Conceptual" skills and "Decision Making" Actions. c. In Part Va, the rater placed an "X" in the "Unsatisfactory Performance - Do Not Promote" block and entered the following comments: "I relieved [the Applicant] for cause as a result of my loss of confidence in his ability to command due to a pattern of poor judgment on his part. This pattern came to light during an investigation conducted in Iraq and became fully known to me upon the unit's return. Additionally, during this rating period, [the applicant] received a GOMOR from the JRTC and Fort Polk CG that was filed in his OMPF for using government equipment and Soldiers for non-official business. This violates the Army values of honor and duty and it is indicative of poor judgment and decision making skills. d. In Part VIIa, the Senior Rater placed an "X" in the "Do Not Promote" block and entered the following comments: "[The applicant] was relieved for cause. I lack confidence in his honesty and capacity to command the 519th MP Battalion. He has shown poor judgment in relations with subordinates on more than one occasion. [The applicant] returned his battalion from Iraq on time and began reintegration as directed. He has no potential for future service as a commander at any level. Do not promote." 25. On 21 November 2006, after the RFC OER was referred to the applicant, he submitted a rebuttal wherein he stated during his first month in the battalion he confused a local policy for assisting members in distress with the long-term Department of Defense policy prohibiting work place-to-domicile use of government vehicles and he was transported to and from his on-post quarters when his vehicle was disabled. He admitted this failure was his. Nevertheless, he was proud to be a Soldier and had done his duty in combat with honors as evidenced by the remarks by senior officers who described him as "hands down, the best battalion command in the Corps." His honesty was also beyond reproach as evidenced by the V Corps Deputy Commander's statement that he "believed 100% in the applicant's testimony and only 20% in his accuser's testimony." He concluded since he had been serving in combat for the past year, a wartime commander's assessment would more accurately reflect who he is. 26. On 16 January 2007, the RFC OER was signed by rating officials, and the applicant, and processed at HRC. The OER is currently filed, together with the applicant's rebuttal, on the performance section of the applicant's OMPF. 27. On 7 November 2007, by memorandum, the CG, HRC, Alexandria, VA, notified the applicant that he was identified by the Fiscal Year (FY) 2007 Army Maneuver Fires and Effects Senior Service College Selection Board to show cause for retention on active duty under the provisions of paragraph 4-2b, Army Regulation 600-8-24, because of misconduct, moral or professional dereliction. The action was based on the existence of a GOMOR, dated 28 September 2006, and two Below Center of Mass OERs in his records. 28. On 24 April 2008, by memorandum, the CG, HRC notified the applicant that the elimination action initiated against him on 7 November 2007 was terminated. Documents contained in his OMPF which were the basis for directing him to show cause for retention on active duty would remain in his file. 29. Since his GOMOR and subsequent relief his accomplishments are as follows: * Received an ACOM OER from 12 October 2006 through 11 October 2007 as a chief of MP doctrine at Fort Leonard Wood, MO * Completed the Air War College from April 2007 to June 2008, at Maxwell Air Force Base, Montgomery, AL * Received an ACOM OER from 12 October 2007 through 1 July 2008 as the Chief of MP Doctrine, Fort Leonard Wood, MO * Received a Center of Mass OER from 2 July 2008 through 28 March 2009 as a Chief of MP Doctrine, Fort Leonard Wood, MO * Received an ACOM OER from 29 March 2009 through 28 March 2010 as a chief of MP doctrine at Fort Leonard Wood, MO 30. On 28 January and 5 April 2010, the DASEB granted him partial relief in that it ordered the transfer of his GOMOR to the restricted section of his OMPF. However, the OSRB denied his request to remove the two contested OERs from his OMPF. 31. The Army Selection Board Schedule for COL is as follows: * FY 2008, convened on 8-30 July 2008; released * FY 2009, convened 7-24 July 2009; released * FY 2010, convened 8-25 June 2010; released * FY 2011, scheduled for 16-30 August 2011 32. The applicant submitted: a. Various audio tape transcriptions by various officers, civilians, and a noncommissioned officer in relation to the EO and transportation issues. b. Copies of interview questions from the MNC-I EQ advisor to several individuals. c. Internet printout regarding the applicant's battalion and its return from deployment. d. Volumes of numerous exhibits, enclosures, and miscellaneous documents related to a telephone interview, sworn statements, appeal of the substantiated EO memorandum, denial of his EO appeal, and several additional tape transcriptions. e. Complaint memorandum to DAIG alleging reprisal regarding the review of the informal investigation conducted by the IO and the facts and circumstances of allegations of gender bias. f. Various letters of support and/or character reference letters and a listing of the applicant's personal and professional accomplishments, titled: Decisive Operations. g. A matrix of allegations of EO violations, truth indicators, explanations, and their significance to the issue. h. Memoranda of MNF-I and 49th MP Brigade EO complaint reprisal protection plan signed by officers and NCOs who participated in the investigation of the EO complaint. 33. Army Regulation 600-37 (Unfavorable Information), paragraph 7-2a, 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. Paragraph 7-2b(1) states that unfavorable documents may be appealed on the basis of proof that their intended purpose has been served 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. 34. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. It states that evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the appellant. a. Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps. Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, and counseling forms. Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades. b. Paragraph 2-19a states when an officer is officially relieved of duties and a Relief-for-Cause Report is subsequently prepared, relief-for-cause reports require referral to the rated officer or warrant officer. If the relief is directed by the rater or intermediate rater, the senior rater will do the review provided he or she is a U.S. Army officer. Otherwise, the first U.S. Army officer in the chain of command or supervision above the individual directing the relief will review the reports. c. Paragraph 2-19b(1) states if the senior rater is qualified to serve as the reviewer and is satisfied that the report is clear, accurate, complete, and fully in accordance with the provisions of the regulation, he or she continues to process the report. d. Paragraph 3-34 states any report with negative comments in Parts Vb, Vc, VI, or VIIc will be referred to the rated officer by the senior rater for acknowledgment and comment before it is sent to Headquarters, Department of the Army (HQDA). e. Paragraph 3-36a states the Senior Rater will place an "X" in the appropriate box in Part IId of the completed report. The report will then be given to the rated Soldier for signature and placement of an "X" in the appropriate box in Part IId. f. Paragraph 3-36b states the rated Soldier may comment if the Soldier believes the rating or remarks are incorrect. The comments will be factual, concise, and limited to matters directly related to the evaluation on the OER/AER; rating officials may not rebut the rated Soldier's referral comments. Extraneous or voluminous material, material already contained in the Soldier's file and enclosures or attachments are not normally in the rated Soldier's best interest; and they, therefore, will be avoided. Any enclosures or attachments to rebuttal comments will be withdrawn and returned to the rated Soldier when the OER is forwarded to HQDA. The rated Soldier's comments do not constitute an appeal. Appeals are processed separately as outlined in Chapter 6. Likewise, the rated Soldier's comments do not constitute a request for a Commander's Inquiry. Such a request will be submitted separately. If the senior rater decides that the comments provide significant new facts about the rated Soldier's performance and that they could affect the rated Soldier's evaluation, they may refer them to the other rating officials. They, in turn, may reconsider their evaluations. The Senior Rater will not pressure or influence them. Any rating official who elects to raise their evaluation of the rated Solder as a result of this action may do so. However, the evaluation may not be lowered because of the rated Soldier's comments. If the evaluation report is changed but still requires referral, the report will again be referred to the rated Soldier for acknowledgment and new comments. Only the latest acknowledgment and comments (if submitted) will be forwarded to HQDA. g. Paragraph 3-58 states that an OER report is required when an officer or warrant officer is relieved for cause regardless of the rating period involved. Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in their performance of duty. In this regard, duty performance will consist of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards. These standards will apply to conduct both on and off duty. The following are additional considerations for these reports: (1) If, for whatever reason, the relief does not occur on the date the officer is removed from duty position responsibilities, the period of time between the removal and the relief will be nonrated time included in the period of the relief report. The published rating chain at the time of the relief will render the report at the time of the relief; no other report will be due on this officer during this nonrated period. (2) Cases where the rated officer has been suspended from duties pending an investigation will be resolved by the chain of command as expeditiously as possible to reduce the amount of potential nonrated time involved. Every effort will be made to retain the established rating chain, with the officer performing alternate duties under that rating chain, until the investigation is resolved. If the rated officer is suspended and subsequently relieved, the period of suspension is nonrated time. If the rated officer is suspended and subsequently placed back to duty (not relieved), the period of suspension is recorded as evaluated time on the next OER. (3) If RFC is contemplated on the basis of an informal investigation, referral procedures contained in that regulation will be followed before the act of initiating or directing the relief. This is irrespective of the fact that the resultant report will also be referred to the rated officer as described in paragraph 3-34. This does not preclude a temporary suspension from assigned duties pending application of the procedural safeguards. (4) A rating official may relieve an officer because of information received about a previous reporting period. h. Paragraph 3-58f states a rating official may relieve an officer because of information received about a previous reporting period. For example, a rating official receives information from a completed investigation into a past incident and will relieve the officer from their present position or to process them for elimination. When this occurs, the following provisions apply: an RFC report will be prepared; the rated officer will be evaluated only on performance during the current rating period, with the exception of the statement clarifying the relief; the reason for the relief will be cited in the report; and the minimum time requirements for rating officials do not apply. All rating officials will evaluate; however, any rating official who has not directed the relief, and does not agree with the relief, may state a nonconcurrence in the proper narrative portion of the report. 35. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. Table 2-1 states that administrative letters of reprimand, admonitions, and censures of a non-punitive nature are filed in the performance section of the OMPF. They are also filed in the MPRJ. 36. Army Regulation 600-8-29 (Officer Promotions) prescribes the policies and procedures for promotion of commissioned officers on the active duty list (ADL). Chapter 7 provides for SSBs. It states SSBs may be convened under Title 10, USC, section 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: a. An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the ADL (SSB required). b. The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary). c. The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). 37. Material error in this context is one or more errors of such a nature that in the judgment of the reviewing official (or body) it caused an individual’s non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered a reasonable chance would have resulted that the individual would have been recommended for promotion. An officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial or the officer, exercising reasonable diligence, could have discovered and corrected the error in his/her official records. An officer will also not be considered or reconsidered for promotion by a SSB when letters of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the record. 38. Army Regulation 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; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. 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. 39. Army Regulation 600-20 (Army Command Policy) effective 18 March 2008 defines sexual harassment and hostile work environment in paragraph 7-4 as follows: Sexual harassment is a form of gender discrimination that involves unwelcomed sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature between the same or opposite genders when: a. Submission to or rejection of such conduct is made either explicitly or implicitly a term or condition of a person’s job, pay, or career. b. Submission to, or rejection of, such conduct by a person is used as a basis for career or employment decisions affecting that person. c. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance, or creates an intimidating hostile or offensive working environment. 40. Any person in a supervisory or command position who uses or condones implicit or explicit sexual behavior to control, influence, or affect the career, pay, or job of a Soldier or civilian employee is engaging in sexual harassment. 41. Army Regulation 600-20, paragraph 7-6, provides for types of sexual harassment and states that a hostile environment occurs when Soldiers or civilians are subjected to offensive, unwanted and unsolicited comments, or behaviors of a sexual nature. If these behaviors unreasonably interfere with their performance, regardless of whether the harasser and the victim are in the same workplace, then the environment is classified as hostile. A hostile environment brings the topic of sex or gender differences into the workplace in any one of a number of forms. It does not necessarily include the more blatant acts of “quid pro quo”; it normally includes nonviolent, gender-biased sexual behaviors (for example, the use of derogatory gender-biased terms, comments about body parts, suggestive pictures, explicit jokes and unwanted touching). DISCUSSION AND CONCLUSIONS: 1. The applicant contends: * The negative comments should be removed from the CR OER and he should be given an ACOM rating * The RFC OER and the GOMOR, dated 28 September 2006, should be removed from his OMPF * His records should be considered for promotion to COL by an SSB * He should be given a personal hearing 2. After a comprehensive review of the evidence in the applicant's OMPF, the applicant’s contentions and arguments, and the voluminous evidence submitted in support of his application, other than his dissatisfaction, the applicant did not show, by clear and convincing evidence, that the GOMOR, dated 28 September 2006 or the contested OERs contains a material error, inaccuracy, or injustice. Therefore, he is not entitled to the requested relief. 3. His allegations and arguments can be summarized as simply “rearguing” his case. He has stated the reasons he disagrees with the judgment and the decisions of the officers who wrote his OERs and imposed the GOMOR. He is arguing that the ABCMR should give the various items of evidence a different weight and come up with different conclusions than those officers who were responsible for the actions that took place. 4. Part IV of the CR 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 public 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. 5. The CR OER also talks about the applicant's tactical and technical proficiency. His rating officials gave him credit for the same. However, having been found in violation of EO policy his rater appropriately rated him by entering "No" in the area of "Respect" which signifies whether a rated officer promotes dignity, consideration, fairness, and EO. The "No" entry specifically refers to the substantiated EO finding. There is no evidence and the applicant has not provided sufficient compelling evidence which shows this OER is substantively inaccurate or that it fails to accurately reflect his performance or potential. Nor has he provided sufficient evidence to substantiate that his rater and/or senior rater failed to comply with the regulatory requirements of evaluating him in a fair and unbiased manner. 6. The applicant did not provide sufficient evidence to overcome the "presumption of regularity" and to justify changing the CR OER to ACOM. Based on the applicable regulations, the CR OER is correct as constituted and the applicant did not meet the burden of proof to justify removal of any information from the OER. 7. There is no regulatory requirement for the senior rater to rate any officer within a population ACOM. The senior rater profile, as the name indicates, belongs to the senior rater. The senior rater makes an assessment of the rated officer’s potential in comparison with all officers of the same grade. This assessment is based on officers the senior rater has rated or currently has in his/her senior rater population. Nevertheless, the senior rater is under no obligation to rate any of his officers ACOM. 8. The applicant’s outstanding performance throughout his career and his combat service are noted. However, the fact that the contested OERs are inconsistent with the ACOM reports he previously or later received has no bearing on the contested OERs. By regulation, each report is an independent evaluation of a rated Soldier for a specific rating period and essentially "stands alone." 9. With respect to the RFC OER, shortly upon his return to Fort Polk from Iraq his rater became aware of a pattern of poor judgment which involved the applicant's use of Soldiers and military equipment for unofficial purposes and the issuance of a GOMOR. Therefore, the applicant was issued an RFC OER and the rater appropriately entered "No" in the area of "Honor" which signifies whether a rated officer adheres to the Army's code of values and in the area of "Duty" which signifies whether an officer fulfills his professional, legal, and moral obligations. He also rated him by entering "No" in the area of "Conceptual" attributes which signifies whether an officer demonstrates sound judgment and "No" in "Decision Making" attributes which signifies whether an officer employs sound judgment. Additionally, both the rater and senior rater placed their ratings in the appropriate blocks. The RFC OER was referred to the applicant and he had an opportunity to submit his comments. 10. The applicant has not provided sufficient evidence to show the RFC OER should be removed from his OMPF. The reason for his relief was clearly stated as the brigade commander's loss of confidence in the applicant's ability to command due to poor judgment. 11. While in Iraq the applicant was the subject of a substantiated EO complaint regarding gender bias. The EO complaint was reviewed by EO advisors as well as the applicant's chain of command. His chain of command recommended that he be reprimanded. He appealed the findings of the EO complaint to the CG, MNF-I and his appeal was denied. 12. While the IO wrestled with substantiating the claims of the lieutenant who filed the EO complaint, she (the IO) ultimately substantiated the claim. The IO stated "It has been difficult for me to come to a conclusion on whether to substantiate her claim against [Applicant] for gender discrimination…. It’s difficult to say whether a preponderance of the evidence substantiates this basic accusation, as there are at least two sides to much of the “evidence” I’ve been able to collect." However, the IO did find a “permissive” atmosphere where videos shown during BUBs sometimes crossed the line and were in bad taste. The videos, at times, made fun of certain groups of people. 13. The IO indicated the overall climate indicated gender bias, or perhaps a mildly anti-female bias present in the command climate of the 519th MP Battalion. All the female lieutenants assigned to this headquarters believed this to be the case, and a number of the male officers agreed. Whatever the intent, the perception of gender bias was there The IO believed there was a preponderance of evidence that [the applicant] created a hostile working environment for females and the females within his battalion had a significant perception of gender discrimination. 14. The applicant alleges that the IO initially exonerated him but due to command influence she changed her recommendation. He provided a transcript of an interview with her wherein she stated she found a poor working environment but initially did not substantiate the complaint. She later substantiated the complaint after receiving input from EO officials. She considered the input as advice from subject matter experts and not as command influence. 15. The applicant alleges the IO did not sufficiently probe the motives and bias of the alleged victim (the lieutenant). Army Regulation 600-20 allows consideration of the motives and bias of the complainant. The regulation states the IO and command should evaluate the requested remedy on the formal complaint. The regulation states “[i]f the complainant’s response is vindictive, vengeful, or malicious, and seems extreme in light of the events or circumstances, this may be helpful to the commander or IO in terms of motive and believability.” The female lieutenant requested that the applicant be removed from command, receive a formal reprimand, and cease his behavior. Given the applicant’s position and the Army’s policy against harassment, her requested remedy does not appear to be overly vindictive or vengeful. 16. Care must be exercised to ensure the investigation focuses on the allegations and does not shift to an inquiry of or become an intimidating process for the complainant. Army Regulation 600-20, Appendix D, paragraph D-6 d, states that the EO advisor will ensure the focus of the investigation is placed squarely on assessing the validity of the allegations and avoids shifting the focus of the investigation against the complainant. Paragraph D-7 a (3) states “[a]ctions to resolve complaints should focus on changing inappropriate behavior of offending personnel and avoid targeting the complainant. The IO did not conduct an inquiry into the lieutenant’s motivations; she was directed to investigate the allegation, not the lieutenant 17. With respect to the GOMOR, dated 28 September 2006, an anonymous complaint alleged that he had his driver pick him up at his place of residence and that he used his driver to do his personal errands. An informal inquiry conducted by an IO established by the preponderance of evidence, including interviewing the applicant himself, that the applicant, a battalion commander and senior Army leader, used active duty Soldiers and military equipment for unofficial purposes. He admitted that the allegation was true during an interview with the IO. Accordingly, he was reprimanded. 18. Therefore, the GOMOR was properly administered in accordance with applicable regulations and properly filed in the performance section of his OMPF. There is no evidence of an error or an injustice. The evidence considered by the IO and the GOMOR imposing authority sufficiently established by a preponderance of the evidence the applicant violated the principles of ethical conduct for government officers and employees when he used active duty Soldiers and a government vehicle for unofficial purposes. 19. Among the purposes of filing unfavorable information is protection not just for the Soldier’s interests but for the Army’s as well. Here, the applicant failed to achieve his command responsibility. The fact that the DASEB directed this GOMOR to be filed on the restricted section of his OMPF does not mean this violation should not go unrecorded in his OMPF simply because he believes the GOMOR has served its purpose. 20. An SSB may be convened to consider or reconsider a commissioned or warrant officer for promotion when HQDA discovers an officer was not considered from in or above the promotion zone by a regularly scheduled board because of an administrative error, the board acted contrary to law, the board made a material error, or the board did not have some material information. The applicant does not meet the criteria for an SSB. 21. 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. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION 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 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. ABCMR Record of Proceedings (cont) AR20110002285 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110002285 20 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1