BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160004744 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: 12 December 2017 DOCKET NUMBER: AR20160004744 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 to amend the decision of the Army Board for Correction of Military Records as set forth in Docket Numbers AR20050016139 and AR20070000930 on 10 January 2006 and 25 October 2007, respectively. __________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: 12 December 2017 DOCKET NUMBER: AR20160004744 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 defers to counsel for the submission of his request, statement, and evidence. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decisions set forth in Docket Numbers AR20050016139 and AR20070000930 on 10 January 2006 and 25 October 2007, respectively. In effect, counsel requests correction of the applicant's record as follows: * removal of a relief for cause officer evaluation report (OER) for the period 22 November 2003 through 17 November 2004 from his official military personnel file (OMPF) * removal of a general officer memorandum of reprimand (GOMOR) dated 9 December 2004 from his OMPF * retroactive promotion to colonel (COL) effective August 2006, with placement on the Retired List as a COL * retroactive retired pay as a COL 2. Counsel states: a. The applicant was commissioned in the United States Army on 18 August 1984. He completed the Infantry Officer Basic Course and Ranger School at Fort Benning, GA, and was promoted to the rank of first lieutenant (1LT) on 18 April 1985. Due to his outstanding performance and dedication to the Army, he eventually was promoted to the rank of lieutenant colonel (LTC), effective 1 April 2001. b. The applicant served with honor, distinction, and without incident until 2004. On 9 December 2004, he received a GOMOR for being derelict in his duties as the Defense Attaché (DATT) in Sana'a, Yemen, between 4 February 2004 and 15 July 2004. According to the GOMOR: [The applicant] regularly violated security procedures and exhibited unprofessional and embarrassing behavior. [The applicant] exposed an intelligence source's identity to foreign government attaches, and frequently kept classified material outside the office where [he] could not secure it. [The applicant] compromised physical security following two traffic accidents. [The applicant] allowed [his] government vehicle to be impounded by foreign officials despite knowing its protective equipment could be compromised. [The applicant] had a local dealer repair [his] vehicle when [he] knew repairs could only be made at the embassy. Female embassy employees complained that [the applicant] made them uncomfortable by making sexually suggestive remarks to them. Embassy employees reported that [the applicant] often came to work smelling of alcohol, appearing either intoxicated or hung over, and then slept through parts of the duty day. c. The applicant submitted a written rebuttal to the GOMOR on 5 January 2005. In his rebuttal, the applicant highlighted numerous factual inaccuracies with the circumstances that led to his GOMOR. Regarding the allegation that he exposed an intelligence source's identity, he explained that the individual he spoke to possessed the proper security clearance for such information. He also explained that the notebook he used for meetings did not contain classified information, which was confirmed by an individual in the Defense Intelligence Agency (DIA). Further, the traffic accidents he was involved in led to his vehicle being taken to a local Yemeni police station but the vehicle was returned the same day to the embassy for repairs. The parts needed for the repair were purchased from local merchants, but the repairs were completed at the embassy. Additionally, the applicant stated that he was told that one of his comments to Ms. D______ K______ made her feel uncomfortable, and he offered to apologize for to clear up any misunderstanding. The applicant was told that would not be necessary because Ms. K______ stated an apology was not needed. Lastly, the applicant fervently denied ever reporting to work smelling of alcohol, appearing intoxicated or hung over, or sleeping through parts of the duty day. He admitted that he would occasionally take a nap during his lunch hour but that was because he woke up around 0400 hours so he could physically train for 75 minutes before reporting to work at 0700 hours. The applicant explains that he went to Germany for a medical and psychological evaluation and to meet with an Army Substance Abuse Program (ASAP) counselor. The evaluations found that he did not have an issue with alcohol and no treatment was required. The applicant requested that his GOMOR be placed in his restricted file because he was on the cusp of attaining the grade of O-6 and a permanently filed GOMOR would certainly derail his career. d. On 15 March 2005, captain (CPT) V___ H____ and LTC G____ W_____ both recommended that the GOMOR be placed in the applicant's permanent file. On 16 March 2005, COL T_____ A_____ recommended the GOMOR be placed in the applicant's permanent file. On 18 April 2005, Brigadier General (BG) M______ E____ recommended the GOMOR be placed in the applicant's permanent file because his actions demonstrated a "pattern of misconduct that cannot be tolerated by a field grade officer, especially one in a sensitive attaché position." BG E____ elaborated that the applicant's "continued failure to seek professional help for his drinking problem also shows that he does not appreciate the seriousness of his misconduct and the impact his drinking has had on the mission and the U.S. military." On 1 June 2005, Major General (MG) G____ J______ directed that the applicant's GOMOR be placed in his permanent OMPF. e. As a result of the allegations enumerated above, the applicant also received a relief for cause OER on 5 May 2005. The applicant's rater wrote that he was counseled for "excessive consumption of alcohol, lax security awareness, and inappropriate comments to a female DIA analyst." Additionally, the rater noted that the applicant was referred to Landstuhl Hospital in June 2004 because of his alcohol consumption, at which time Landstuhl found that he did not have an alcohol dependency. As part of his testing, the applicant was evaluated by a psychiatrist, internal medicine physician, and an ASAP counselor. Further, the his senior rater stated that he was removed from his assignment because of "questionable comportment, lack of security awareness, and alcohol abuse," but also wrote that if the applicant sought professional treatment, "I believe he can regain control of his future and fulfill his potential in high-level assignments where his knowledge of the Middle East would be invaluable." f. The applicant appealed to the U.S. Army Human Resources Command (HRC) to remove the negative portions of his relief for cause OER. Despite highlighting numerous inaccuracies with his OER, HRC declined to remove the negative portions of the OER. The applicant applied to the Department of the Army Suitability Evaluation Board (DASEB) in May 2006. The DASEB voted to deny removal of the GOMOR. g. The applicant next applied to the ABCMR to remove the GOMOR from his records. In January 2006, the ABCMR ruled that the applicant's GOMOR was properly placed in his permanent OMPF. In its rationale, the ABCMR stated the applicant's contention that the GOMOR was improperly placed was without merit because he could not provide the Board with a copy of the investigation that was conducted into his alleged misconduct. In 2007, the applicant applied to the ABCMR to have his relief for cause OER removed from his OMPF. In November 2007, the ABCMR declined to remove the OER from his military records. h. On 31 August 2006, the applicant retired. He served a total of 22 years and 13 days. At the time of his retirement, he was serving in the rank of LTC. i. The applicant's revoked selection to the Army War College was a direct result of his GOMOR and relief for cause OER, which were based on inaccurate information. The investigation that was conducted in 2004 regarding the alleged misconduct is not available for examination because it contains classified information. Although the applicant is unable to provide this honorable Board with a complete copy of the investigation, he has been continuously arguing the veracity of the claims against him since 2005. j. The applicant's final OER, which immediately followed his relief for cause OER, provides further evidence of this undeniably exceptional performance as a LTC. The applicant's rater once again rated him as "Outstanding Performance, Must Promote". The rater wrote that the applicant was "the best Lieutenant Colonel I have ever rated" and that he "displayed his outstanding leadership by coordinating the activities of the leaders of six divisions -Engineering, Environmental, Housing, Master Planning, Business Management, and Operations and Maintenance." The rater concluded by writing that the applicant "should be promoted to Colonel at the first opportunity." k. In light of the facts and arguments provided herein, the applicant respectfully requests that he be promoted to the grade of 0-6, retroactive to August 2006, with back pay. He was certainly on the path to being promoted to COL before receipt of the GOMOR and relief for cause OER in 2004. It has been demonstrated here that the allegations used to justify the GOMOR and OER are inconsistent, inaccurate, and grossly inflammatory. Further, there is no documented history of counseling to corroborate any of the exaggerated allegations against the applicant. Lastly, the applicant's OMPF does reflect a clear and convincing pattern of excellence and stellar performance during his time as a LTC, with every OER except for his relief for cause OER demanding that he be promoted to O-6. 3. Counsel provides a legal brief and documents labeled and organized as follows: * Exhibit 1 - DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 August 2006 * Exhibit 2 - Permanent Orders 75-18, dated 18 April 1985 * Exhibit 3 - Order Number 072-011, dated 13 March 2001 * Exhibit 4 - GOMOR, dated 9 December 2004 * Exhibit 5 - GOMOR Rebuttal, dated 5 January 2005 * Exhibit 6 - memorandum recommending permanent file of GOMOR, dated 15 March 2005 * Exhibit 7 - memorandum recommending permanent file of GOMOR, dated 15 March 2005 * Exhibit 8 - memorandum recommending permanent file of GOMOR, dated 16 March 2005 * Exhibit 9 - memorandum recommending permanent file of GOMOR, dated 18 April 2005 * Exhibit 10 - memorandum directing permanent file of GOMOR, dated 1 June 2005 * Exhibit 11- OER covering the period 22 November 2003 through 17 November 2004 * Exhibit 12 - memorandum for OER Branch, HRC, dated 10 May 2005 * Exhibit 13 - OER Appeal, Case Summary, dated 10 June 2005 * Exhibit 14 - memorandum from Office of the Deputy Chief of Staff, G-1, Special Review Boards, dated 28 June 2005, subject: Resolution of Unfavorable Information * Exhibit 15 - ABCMR, Record of Proceedings, dated 10 January 2006 * Exhibit 16 - ABCMR, Record of Proceedings, dated 25 October 2007 * Exhibit 17 - Citation to Accompany the Award of the Joint Service Achievement Medal with Certificate and orders, dated 8 May 2002 * Exhibit 18 - Citation to Accompany the Award of the Defense Meritorious Service Medal with Certificate and orders, dated 28 May 2003 * Exhibit 19 - Officer Record Brief, dated 30 November 2004 * Exhibit 20 - DA Form 1059 (Service School Academic Evaluation Report), covering the period 26 May 2003 through 21 November 2003 * Exhibit 21 - OER covering the period 1 February 2001 through 25 May 2001 * Exhibit 22 - OER covering the period 25 May 2001 through 24 May 2002 * Exhibit 23 - OER covering the period 25 May 2002 through 24 May 2003 * Exhibit 24 - OER covering the period 18 November 2004 through 17 November 2005 * Exhibit 25 - professional résumé * Exhibit 26 - recommendation for promotion letter, dated 14 December 2015 * Exhibit 27 - recommendation for promotion letter, dated 8 December 2015 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Numbers AR20050016139 and AR20070000930 on 10 January 2006 and 25 October 2007, respectively. 2. The applicant, via counsel, provides as a new argument, wherein he contends that based on his long and honorable career, his case should be reconsidered based on the merits. He provides new evidence as outlined at paragraph 3 above and a new argument in support of his request. 3. The applicant was appointed as a Reserve commissioned officer of the Army on 19 May 1984, in the rank of second lieutenant. He entered active duty on 18 August 1984. 4. On 1 April 2001, he was promoted to LTC. 5. On 9 December 2004, the applicant received a GOMOR. The GOMOR stated: a. Between 4 February and 15 July 2004, the applicant was derelict in performing his duties as the DATT to United States Defense Attaché Office (USDAO) Sana'a, Yemen, in a number of disturbing ways. The imposing official cited as the basis for the GOMOR that the applicant had regularly violated security procedures and exhibited unprofessional and embarrassing behavior. He had exposed an intelligence source's identity to foreign government attachés and frequently kept classified material outside the office where he could not secure it. He compromised physical security following two traffic accidents. Female embassy employees complained that he made them uncomfortable by making sexually suggestive remarks to them. Embassy employees reported that he often came to work smelling of alcohol, appearing either intoxicated or hung over, and then slept through parts of the duty day. b. His conduct, both on and off duty, had been disgraceful. As a LTC in positions of high visibility and prestige, he represented the Army to civilians and foreign nationals. This misconduct ultimately resulted in his removal from the position of DATT, USDAO Sana'a, Yemen. c. The GOMOR was administratively imposed under the provisions of Army Regulation 600-37 (Unfavorable Information) and not as punishment under the Uniform Code of Military Justice (UCMJ). The imposing official stated he was considering whether to direct that the reprimand be filed permanently in his OMPF; however, prior to making his filing decision, he would consider any matters presented within 10 days of the date of the GOMOR. 6. On 5 January 2005, the applicant submitted a rebuttal, wherein he requested the GOMOR be filed locally and stated: * he had not violated security procedures; he had been assigned to three different embassies and he had not been notified in writing by a Regional Security Officer (RSO) of security violations in accordance with State Department procedures * he acknowledged that he did casually mention a source’s identity but that he later confirmed that his identity was not compromised and that he was safe * he destroyed any classified material he had put in his notebook and that in regards to the vehicle accident, he followed procedures given him by the assistant RSO and after learning that the information was incorrect, he corrected the situation * he also asserted that had he known his comments to female employees made them uncomfortable, he would have apologized and refrained from any further actions that may have offended them * he did not report to work smelling of alcohol * he referred himself for an evaluation in June and no problem was identified 7. Following recommendation by the applicant's chain of command, on 1 June 2005, the imposing officer directed the GOMOR be filed in the applicants OMPF. 8. On or about 5 May 2005, the applicant received a relief for cause OER, covering the period 22 November 2003 through 17 November 2004. Both the rater and senior rater recommended that he not be promoted. a. In Part V (Performance and Potential Evaluation-Rater) of the contested report, the rater placed the applicant in the Three Block (Unsatisfactory Performance-Do Not Promote). The rater's comments in Part V b (Comments on Specific Aspects of Performance and Potential for Promotion) included some favorable notes on the applicant's initial performance of duty upon arrival at the assignment; however, they also indicated that his poor judgment became an embarrassment to DIA and the United States Embassy, which resulted in his call back to Washington, DC, to receive counseling for excessive alcohol consumption, lax security awareness, and his inappropriate comments made to a female DIA agent. b. In his comments, the rater did note the applicant's tremendous potential and recommended the applicant seek professional help to overcome his problems in order to move forward and make a positive contribution to the Army. c. In Part VII (Senior Rater) the applicant's senior rater placed the applicant in the Three Block (Do Not Promote) and rated him Below Center of Mass. The senior rater concluded by stating that until the applicant received professional help, he was not suitable for continued service in the Defense Attaché System. 9. On 10 May 2005, the applicant submitted a rebuttal to the adverse OER, wherein he contended that there were numerous administrative errors on the report. He appealed the referred report to the Officer Special Review Board (OSRB), wherein he sought removal of the OER from his OMPF. 10. The OSRB denied the applicant's request for removal of the OER from his OMPF. The OSRB record of proceedings concluded there was a preponderance of evidence, to include sworn statements from Embassy Officials that refute the majority of the applicant's contentions. 11. On 19 May 2006, the applicant received a subsequent OER covering the period 18 November 2004 through 17 November 2005, which shows he was rated as center of mass. 12. On 28 June 2006, the DASEB denied the applicant's request for removal of the GOMOR from his OMPF. 13. On 31 August 2006, the applicant was honorably retired under the authority of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 6-14c (1), by reason of sufficient service for retirement. 14. Through counsel, the applicant provides a professional résumé and two recommendations for promotion attesting to his professionalism. 15. In connection with the processing of this case, an advisory opinion was obtained on 19 July 2017, from the Chief, Officer Promotions Special Actions, HRC. The advisory official stated: a. A review of the Official Selection Support System (OSSS) indicates the applicant was considered for promotion to COL in both the Fiscal Year (FY) 2005 and FY 2006 but was not selected. b. The reasons for the applicant's non-selection are unknown because statutory requirements set forth in Title 10, U.S. Code, section 613a, prevent disclosure of these proceedings to anyone outside the promotion board in question. c. The decision to recommend an officer for promotion is based upon the criteria established by the Secretary of the Army and the collective judgement of the respective board members as to the relative merit of an officer's overall record when compared to the records of other officers being considered. 16. The advisory opinion was forwarded to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more. Paragraph 6 provides guidance for retirement at 20 years of service. It states, a Regular Army or U.S. Army Reserve commissioned officer with 20 years active federal service, of which 10 years is active commissioned service, may, on their request and the approval of Secretary of the Army, be retired. 2. Army Regulation 600-37 sets forth the basic authority for filing of unfavorable information in the OMPF. Paragraph 3-4 of that regulation provides, in pertinent part, that a non-punitive memorandum of reprimand or admonition will be filed in the OMPF only when directed by a general officer senior to the recipient or by direction of the officer having general court-martial jurisdiction of the recipient. 3. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS). This includes the OER, Noncommissioned Officer Evaluation Report, and Service School Academic Evaluation Report (AER). Chapter 2 contains guidance on managing the rating chain. It states that commanders will establish and file rating chains in accordance with locally developed procedures and Army and DOD regulations. Rating chains will correspond as nearly as practicable to the chain of command and supervision within an organization, regardless of component or geographical location. a. Paragraph 2-18 provides guidance on reviewing OERs and AERs. It states, in pertinent part, that in most instances the senior rater for OERs will perform the final rating chain review. All reviewing officials for OERs will ensure that evaluation rating chains are correct, and that evaluations rendered by rating officials are examined and discrepancies are clarified or resolved. b. Paragraph 3-39 provides the basic rule applicable to modifications of previously submitted reports. It states, in pertinent part, that an evaluation report accepted by Headquarters, Department of the Army (HQDA) and included in the official record is presumed to be administratively correct, to have been prepared by the properly designated rating officials, to represent the considered opinions and objective judgment of the rating officials at the time of preparation. It also states that requests that a report that has been accepted for filing in an officer’s record be altered, withdrawn, or replaced with another report will not be honored. c. Section III of chapter 6 contains the policies and procedures for evaluation appeals. It states, in pertinent part, that 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. It further states that appeals based solely on statements from rating officials claiming administrative oversight or typographical error of an OER, NCOER, or AER will normally be returned without action unless accompanied by additional substantiating evidence. It further indicates, in pertinent part, that an officer's authentication in Part II of the OER verifies the information in Part I. It also confirms that the rating officials named in Part II are those established as the rating chain. Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier (Parts I, II, and III a) will be accepted only under the most unusual and compelling circumstances. The rated soldier's signature also verifies the rated soldier has seen a completed evaluation report. Correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report. d. Paragraph 6-11 contains guidance on the burden of proof and type of evidence necessary to support an evaluation appeal. It states, in pertinent part, that the burden of proof rests with the appellant, and accordingly, to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraphs 3-39 and 6-7 of the regulation will not be applied to the report under consideration. That action is warranted to correct a material error, inaccuracy, or injustice; and clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. DISCUSSION: 1. The applicant contends, through counsel, that he served 22 years of impeccable service and but for a material error of discretion and injustice, he would have been promoted to COL in August 2006. He further contends the GOMOR and relief for cause OER that he received should be removed from his OMPF because they were based on material errors and factual inaccuracies. 2. The evidence of record shows the applicant received a GOMOR and was removed from his position as a Defense Attaché officer for repeated misconduct. The imposing general officer properly referred the GOMOR to the applicant and did not make his final OMPF filing determination until he reviewed the appeal/rebuttal and all supporting material submitted by the applicant. As a result, there is no evidence the filing determination was arbitrary or capricious or anything other than the objective decision of the imposing general officer. 3. The available evidence confirms the GOMOR proceedings were accomplished 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 process. Additionally, the DASEB denied the applicant's request for removal of the GOMOR from his OMPF. 4. Subsequently, the applicant received a relief for cause OER, covering the period 22 November 2003 to 17 November 2004. He submitted a rebuttal to the adverse OER contending that there were numerous administrative errors on the report and appealed the referred report. The OSRB did not determine the existence of a material error or injustice and denied relief. By regulation, in order to remove a document from the OMPF, there must be compelling evidence to support its removal. 5. The available evidence shows the applicant was considered for promotion to COL by promotion boards for FY05 and FY06, but he was not selected. The exact reasons for his non-selection for promotion are unknown because requirements set forth in law prevent disclosure of board proceedings to anyone who was not a member of the presiding board. It can only be concluded that the promotion boards determined that his overall record, when compared with the records of his contemporaries, did not reflect the same potential as those selected. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004744 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004744 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2