BOARD DATE: 5 December 2017 DOCKET NUMBER: AR20170016871 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: 5 December 2017 DOCKET NUMBER: AR20170016871 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 decisions of the ABCMR set forth in: * Docket Numbers AC91-05367, dated 22 July 1992 * Docket Number AC91-05367A, dated 22 September 1993 * Docket Number AR20080004886, dated 8 May 2008 * Docket Number AR20090003644, dated 6 August 2009 * Docket Number AR20150012593, dated 16 July 2015 ___________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: 5 December 2017 DOCKET NUMBER: AR20170016871 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of the portion of his earlier request for removal of the annual officer evaluation report (OER) for the rating period 5 May 1988 through 4 May 1989 from his official military personnel file (OMPF). 2. The applicant corresponded with his Member of Congress and stated: a. He is a former captain (CPT) and a veteran of the Vietnam and Gulf War eras. He served in three military branches. His duties included two tours of duty in Vietnam for which he received numerous awards and decorations for actions in defense of our country. For the reasons mentioned in this letter along with the documents provided he requested assistance to correct a wrong of long- standing, some 21 years ago, for reporting his commander and senior rater, Colonel (COL) RRE, of criminal wrong doings while in the performance of his military duties. He is 70 years of age and feels his case demonstrates a sense of urgency. He asked a Member of Congress to contact the Secretary of the Army (SA) and review the latest decision by the Army Board for Correction of Military Records (ABCMR) concerning his case (ABCMR Docket Number AR20150012593, dated 6 December 2016) and make a determination (final decision) whether the conclusion being reviewed is supported by substantial evidence. The SA has lawfully granted authority under Title 10, U.S. Code, section 1552 (a)(1), and Title 10, U.S. Code, section 1034, to review ABCMR's decisional documents in cases involving reprisal under the Military Whistle Blowers Protection Act, confirmed by the Department of Defense Inspector General (DODIG). b. In 1989, he was a CPT on active duty under command of COL RRE. He was responsible for certifying the unit's monthly payroll. He was asked to falsify pay records showing COL RRE as present for duty when in fact he was not, which he refused. When he refused, COL RRE proceeded with unsubstantiated disciplinary action(s) against him in the form of an inaccurate OER and an unjustified reprimand, and involuntary release action was initiated against him for alleged substandard performance of duty and misconduct. An Army investigation substantiated his allegations against COL RRE and he was forced into retirement in lieu of disciplinary action. In civilian court, COL RRE received seven felony convictions for aggravated perjury and tampering with court documents. c. His original 1992 application for relief was not considered under the whistleblower statute, and subsequently, the DODIG reviewed the ABCMR's 1992 and the 1993 decisional documents on his case and confirmed he made a disclosure protected by statute and that he suffered the adverse personnel actions from the Department of the Army Criminal Investigation Command (CID) stating his record was clean during his tour of active duty with the Active Guard Reserve (AGR) program. However, it appears the ABCMR treated his request for reconsideration as a simple request and denied the request without considering the new evidence. d. He bases his contention on the information provided in the 6 December 2016 Record of Proceedings on his case. The ABCMR states "the same personnel actions would have been taken had I not made a protected disclosure" and based its assumption on the information that formed the bases for the release from active duty and the alleged misconduct actions that were dismissed/dropped. There never was any substandard performance or misconduct on his part and this can be proven by the enclosed documents. It is noted here that he received an outstanding OER from COL RRE for a prior rating period. e. Based on the information he has provided and the evident problem he has had for the past 27 years to get a fair and honest review of his case, he feels compelled to request a complete review of the 6 December 2016 ABCMR's decisional documents on his case by the Office of the SA, the next level of authority responsible for overseeing the activities of the ABCMR. He placed his career at risk to expose a corrupt Army officer and suffered inappropriate consequences for his actions. He was humiliated and embarrassed and continues to be punished through the loss of his career for speaking the truth. The former officer whom he identified is now associated with a long history of criminal activities and is a convicted felon. That felon was allowed to retire from the Army. 3. The Member of Congress wrote to the SA and stated: a. He requests this Board rectify the wrongful acts committed against his constituent, the applicant. The applicant's letter was provided along with documents explaining the situation that he is trying to get rectified. He honorably served in three branches of our military. His service included two tours of duty in Vietnam for which he received numerous awards and decorations. Although he served with distinction, his military career was cut short due to illegal actions of his commanding officer. b. In 1987, he was on a 3-year active duty tour in the AGR program under the command of COL RRE. He initially received an outstanding OER for the rating period prior to the rating period in question. At the time, he was responsible for certifying the unit's pay records. He was asked to falsify pay records showing COL RRE as present for duty when in fact he was not, which he refused to do and he contacted authorities. When he refused to sign off on the false reports, COL RRE took unlawful retribution against him in the form of inaccurate OER, an unjust reprimand, and involuntary release action based on alleged substandard performance of duty and misconduct, and he coerced other raters to give him unacceptable ratings c. Army investigations substantiated his allegation of COL RRE falsifying pay records and he was forced into retirement in lieu of disciplinary action. In civilian court, COL RRE received seven felony convictions for aggravated perjury and tampering with court documents. Because the applicant alleged that he was the victim of discrimination and reprisal, the DODIG reviewed the 1992 and 1993 decisional disclosure protected by the statute and that he suffered adverse personnel action(s) as a result. The DODIG is specific in mentioning the OERs, the reprimand, and the release action as the adverse personnel actions taken against him. Additionally, the DODIG responded to him stating that if he could provide new information not previously considered by the ABCMR (in 1992 and 1993), then he could submit another application requesting reconsideration. d. He resubmitted an application and included the following new information not previously considered by the ABCMR: the DODIG letter, a sworn statement by retired COL EC and Second Lieutenant (2LT) DS, and a memorandum from the U.S. Army Criminal Investigation Command (CID) stating no criminal records exist on him. However, the ABCMR treated the application as a simple request for reconsideration and denied his request for relief without considering the new evidence. The result of the poor OERs and the information that formed the bases for his release from active duty action viewed by the ABCMR forced him out of the military, thus ending his military career and placing undue financial hardship on him and his family. e. The applicant is an honorable man who served his country with distinction. He requests the Board review the 6 December 2016 decision and make a final decision based on the evidence and information presented. 4. The applicant provides: * Discharge Certificates * Newspaper article * DODIG Letter * COL RRE letter and Garnishment Order * CID Report of Investigation (ROI), dated August 2016. * Sworn statements CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in: * ABCMR Docket Numbers AC91-05367, dated 22 July 1992 * ABCMR Docket Number AC91-05367A, dated 22 September 1993 * ABCMR Docket Number AR20080004886, dated 8 May 2008 * ABCMR Docket Number AR20090003644, dated 6 August 2009 * ABCMR Docket Number AR20150012593, dated 6 December 2016 2. The applicant was appointed as a Reserve commissioned officer of the Army, Medical Services Corps, and executed an oath of office on 14 December 1982. He was advanced to CPT on 5 May 1987. He was ordered to active duty in the AGR program on 5 May 1987 and was assigned to the 829th Station Hospital., Lubbock, TX. 3. On 9 August 1988, the Superior Court of California, San Francisco, issued a court order directing the applicant's employer to withhold a portion of his earnings and pay the San Francisco District Attorney Family Support Bureau as directed for child support in the amount of $466.00. 4. He provided a letter from the San Francisco District Attorney's Office, dated 15 September 1988, regarding child support. The letter advised him that $138.90 was being refunded to him due to overpayment. He also provided a memorandum, presumably dated 27 September 1988, from the Finance Office. It stated that a Garnishment Order was received from the San Francisco District Attorney Family Support Bureau. During the period 1 September 1988 and continuing, $466.00 was to be involuntarily deducted from his pay. If the judgment was not paid in full at the end of that period, garnishment was to continue until a further order was received. He made a comment on a Post-It note that his chain of command was aware that the garnishment of his pay was due to an overpayment and not due to a failure to pay. 5. On 4 September 1988, the applicant was driving on the shoulder of the road when he was stopped by the police and cited for drive while intoxicated (DWI). Texas Department of Public Safety Case Report Number 88-469-xxx shows that his breath smelled of alcohol, his eyes were bloodshot, he was swaying, and he admitted that he had been drinking cognac. The applicant refused to take a breathalyzer test. He acknowledged in writing the police officer DWI statutory warning that his driver's license would be automatically suspended. However, if he requested a hearing on the suspension of the driver's license, the latter would not be suspended or denied until the hearing had been held. 6. On 3 January 1989, he was reprimanded by the Commanding General (CG), Fifth United States Army, Fort Sam Houston, TX, for refusing to take a lawfully requested chemical test for blood alcohol content on 4 September 1988 in Lubbock County, TX. As a commissioned officer, he was aware that intoxicated driving was incompatible with high standards of performance, military discipline, and readiness, and presented an extreme hazard to the health and welfare of the community. This General Officer Memorandum of Reprimand (GOMOR) was imposed as an administrative measure and was filed in the performance section of his OMPF. 7. During May 1989, he received an annual OER covering the period 5 May 1988 through 4 May 1989 for his duties as Training Officer while assigned to the . 829th Station Hospital, 807th Medical Brigade. His rater was Lieutenant Colonel (LTC) JFW, the executive officer, and his senior rater was Colonel (COL) RRE, the hospital commander. a. In Part IV (Performance Evaluation-Professionalism), the rater assigned a rating of "1" (1 being a high degree and 5 being a low degree) in 9 categories, a rating of "2" in 4 categories, and a rating of "3" in 1 category. The rater then entered the following bullet comments regarding the applicant: * has not always shown initiative in getting help in areas he is unfamiliar with * is not always meticulous * his writing must always be proofread prior to publication * does not always handle people with finesse * is always punctual * often works during non-duty hours * takes great pride in his uniform b. In Part Vb (Comments on Specific Aspects of Performance), the rater placed an "X" in the "Often Failed Requirements" block and in Part Vc, he entered the following comments: [Applicant] started the rating period without the benefit of a detailed specific training in his position. Subsequent to a training session given by the Brigade [Support Operations Officer] he has shown an improvement. He was unable to produce, after several tries, an acceptable Mission Essential Task List, Unit Mission List, and Yearly Training Program. He appears to be working at his peak capacity given the extent of his training. He is making the effort required to meet suspense dates but during the rating period he often had to be reminded to provide schedules to the rest of the staff for proper coordination. In the last few months he has tried hard to do the job but he is producing at a moderate rate with daily guidance. I feel he is genuinely trying but this area of endeavor is not his forte. [Applicant] wears the uniform with pride. He has on many occasions voluntarily worked alone on weekends to keep with requirements. [Applicant] is miscast as a training officer. c. In Part Vd (This Officer's Potential for Promotion to the Next Higher Grade is), the rater placed an "X" in the "Other" block and stated "[Applicant] is working at a disadvantage in that he has never attended an Officer Advance Course. Recommend he be sent to the Army Medical Department Officer Advance Course and then be reassigned in a position more in line with his talents. [Applicant] should be considered for promotions based on his own future merit." d. In Part VII (Senior Rater), the senior rater placed an "X" in the third box from the bottom and placed an "X" in the "Yes" block to indicate that a completed DA Form 67-8-1 Support Form) was received with this report and considered in his evaluation and review. He further entered in Part VIIb (Comments) the following comments: [Applicant] has consistently failed to meet suspense dates set by higher headquarters. In many cases he has waited until near the end; therefore, he has failed to organize his work in order to preclude managing by crisis. I personally have received a multitude of complaints from officers and enlisted chiefly due to errors in dates for military schools. His failure to communicate with myself and to properly plan [human immunodeficiency virus] mandatory testing during a quarterly [multiple unit training assembly] led to unnecessary disturbance of training and added expense for [on-the-job training] site personnel. [Applicant's] performance during this rating period has not met the expected standards of an officer of his grade. Officer is not available for signature. 8. The contested OER was signed by his rater on 1 October 1989 and by the senior rater on 12 October 1989. It was referred to the applicant on 12 October 1989 for acknowledgement and comment. The applicant submitted a statement alleging command influence and requested a commander's inquiry. It appears that the investigating officer recommended the OER for the rating period 5 May 1988 through 4 May 1989 (OER1) be reconsidered, but found that the version of OER2 (5 May 1989 through 9 August 1989) was accurate and without command influence. In a statement, the applicant's rater stated that he was ordered to rewrite OER1 and was afraid that he would be eliminated from the service if he did not comply with the directions given by the senior rater to write an adverse OER, and in the end revised both OERs upward. The rated officer's signature block contains the entry "Officer not available for signature." The OER was entered into his military records on 9 November 1989. 9. He received a change-of-duty OER covering the period 5 May 1989 through 9 August 1989. In Part IV (Performance Evaluation Professionalism), he received a rating of "1" in nine categories, a rating of "2" in four categories, and a rating of "3" in one category. His rater assigned an average rating and his senior rater assigned a poor rating. (This OER was removed from his records based on the Board's recommendation in ABCMR Docket Number AR20150012593, dated 16 July 2015.) 10. On 4 August 1989, the Acting Commander, Headquarters, Fort Sam Houston, notified the applicant of initiation of his involuntary release from active duty because of misconduct and substandard performance of duty. The action was based on the following specific reasons: a. His substandard performance of duty as evidenced in his OER covering the period 5 May 1988 through 4 May 1989. b. His neglect in the performance of his duties and inefficiency as evidenced in his failure to process orders for an officer to attend the Officer Basic Course, failure to meet a suspense for the submission of a deployment packet, failure to ensure requests for military training were submitted and processed properly, a Command Readiness Inspection of the 829th Station Hospital in May 1988 deemed the areas for which he was responsible (individual training and training management) were unsatisfactory, and an evaluation of inactive duty training conducted by Fifth United States Army on 3 December 1988 indicated that training management was unsatisfactory. c. His acts of personal misconduct, including garnishment of his military pay by order of the Superior Court of California in August 1988 for failure to pay child support and the issuance of a GOMOR in January 1989 for his refusal to submit to a lawfully requested blood alcohol test after his arrest for driving while intoxicated on 4 September 1988. 11. On 6 March 1990, by memorandum from an officer (not the applicant's senor rater) at the Full Time Support Management Office, Office of the Chief, Army Reserve, the applicant was notified that the Chief, Army Reserve, approved the results of the U.S. Army Reserve AGR Officer Continuation Board that convened on 17 January 1990. The board examined his entire record on an impartial basis and did not recommend his continuation in the AGR program. He was advised he would be released from active duty no later than 9 June 1990. 12. On 4 April 1990, in response to the applicant's IG Action Request, an official at Fifth United States Army IG stated that a review of a commander's inquiry substantiated (only one of several allegations) that COL RRE applied undue pressure on his rater, LTC JFW, to reflect an adverse OER. The OER for the period in question was voided and not forwarded to his OMPF at the Army Reserve Personnel Center. A new OER was written in its place. The IG also indicated that all other allegations the applicant raised were not substantiated. 13. Meanwhile, on 8 March 1990, the applicant had submitted appeals of the two OERs (for the rating periods 5 May 1988 through 4 May 1989 and 5 May 1989 through 6 August 1989). The Officer Special Review Board (OSRB) reviewed his appeal and on 7 June 1990 denied his request. The OSRB opined in the case summary that the rater's problem was self-interest and a lack of moral courage. The OSRB noted that the rater's statement lacked the assertion that the OERs were inaccurate evaluations. The OSRB determined that: a. His appeal was based on his contention that the OERs were substantively inaccurate, illegal, incorrect, unjust, and untrue, and that they violated the prohibition against anyone requiring changes to an OER. He contended his senior rater forced his rater to prepare adverse evaluations as revenge for his having reported his senior rater for wrongdoing while commander of the 829th Station Hospital. b. A commander's inquiry (not available anywhere in his records) previously recommended reconsideration of only the first of the two OERs based on the rater's contention he was pressured into providing an adverse evaluation on the first OER. As a result, both OERs in question were rewritten with upward ratings. The rater gave no indication the final revised OERs, which are the ones filed in the applicant's official records, were written under adverse command influence or were inaccurate in any way. No supporting statements refute the substance of the final OERs, but rather the OERs that were not filed in his OMPF. 14. CID Final ROI, dated 31 December 1990, shows former COL RRE, the applicant's senior rater and the Commander, 829th Station Hospital, was the subject of an investigation into his acceptance of illegal compensation in a matter affecting the Government and acts affecting a personal financial interest. The key points from the ROI are as follows: a. The synopsis states between July 1987 and October 1989, COL RRE, in his capacity as a forensic pathologist, conducted four autopsies while performing weekend drill or annual training. COL RRE also accepted payment for services rendered from three of the autopsies and payment for weekend drill or annual training to which he was not entitled, totaling $380.88. b. The basis for the investigation was information received from the Dallas Fraud Team, CID, on 21 September 1989, that COL RRE was allegedly involved in defrauding the Government through the use of wrongful appropriation of Government vehicles, false statements, and claims submitted to finance activities; larceny of Government funds and property; and using an active duty identification card to gain entry to the base exchange and make purchases when unauthorized to do so. This information was provided by the FBI in Dallas, TX. c. Two of COL RRE's former subordinates, LTC JFW (applicant's rater) and the applicant, made several accusations against him to the FBI. The allegations include COL RRE's misuse of a Government vehicle and personnel on 3 July 1988, receipt of double compensation by performing a paid civilian autopsy at Amarillo, TX, while on Reserve training duty, his wrongful use of a "green" (active duty) identification card to purchase merchandise at the Reese Air Force Base (AFB) Exchange, submission of fraudulent or unsupported travel voucher claims, and being absent without leave during annual training during October 1989 training in Shelby, MS. d. The report shows the claim that COL RRE was absent without leave was determined to be an administrative error. He did not commit fraud on his travel vouchers. Army regulations allowed him to utilize Government vehicles to travel to civilian autopsies and to be paid for performing civilian autopsies during military training time as a means of acquiring and maintaining professional skills or as training for other unit personnel who might observe him perform the autopsy. Concerning the alleged improper purchase of goods at the Reese AFB Exchange, it was determined that he could have legitimately made the purchases using an authorized "red" (Reserve) identification card accompanied by a current Joint Uniform Military Pay System pay certificate on 12 dates per year. The small dollar amount of the cited purchase and the lack of CID purview in the matter resulted in the special agent concentrating his attention on the substantive issue of double pay for work performed on Army time. e. LTC JFW, Executive Officer of the 829th Station Hospital and applicant's rater, was interviewed on 29 November 1989 and repeated the information he had previously provided to the FBI concerning alleged criminal conduct by COL RRE. LTC JFW was unable to assist the special agent in obtaining any relevant information concerning the alleged criminal conduct of COL RRE and could comment only on his perception of personal slights and injustices that he had received at the hand of COL RRE. f. The special agent interviewed the applicant in January 1990. During the interview, he repeated the allegation previously made to the FBI, including instances of perceived unfair treatment he had received, such as bad OERs and a GOMOR. The report states he provided no useful information concerning the allegation against COL RRE and spoke almost exclusively about his perception of unfair treatment he had endured. g. The ROI concluded that COL RRE performed three autopsies for which he received compensation from various Texas counties while in a drill or training status. Several other autopsies had been performed on drill or training days, but after duty hours so as not to have occurred in violation of unit policy. He received a total of $1,500.00 pay for these procedures from various Texas counties while also receiving military pay for the three involved 4-hour training periods, for a total of $380.88 military pay. COL RRE was released from active duty on 31 August 1990 via retirement. On 10 December 1990, the FBI informed CID they closed the case when the Assistant U.S. Attorney for the Northern District of Texas declined prosecution in the matter. On 10 December 1990, the Staff Judge Advocate opined there was sufficient evidence for COL RRE to remain in the title block of this investigation for the listed offenses. 15. On 16 March 1992, the Department of Army Suitability Evaluation Board (DASEB) reviewed the applicant’s request to transfer his GOMOR from the performance section to the restricted section of his OMPF. The DASEB: * found no basis upon which to approve his request * noted his OER appeal had already been denied * found he had a poor record, showed no remorse, and was unsuccessfully trying to shield himself with an ineffective explanation of events 16. In early 1992, the applicant applied to the ABCMR (Docket Number AC91-05367) requesting removal of the GOMOR, removal of the two contested OERs, and reinstatement in the AGR Program. On 22 July 1992, the Board denied his request in full. The Board determined that the contested reports appear to represent a fair, objective and valid appraisal of the applicant's demonstrated performance and potential during the periods in question. 17. He submitted a request for reconsideration to the ABCMR (Docket Number AC91-05367A). On 22 September 1993, the Board denied his request for reconsideration. The Board determined that: * the applicant was cited for DWI, and although he refused to take a breathalyzer test, the suspension of his driver's license was held in abeyance since he requested a hearing * he was given a GOMOR for refusing to take a breathalyzer test; although he was found not guilty in a civil court, this does not negate the fact that he refused to take a breath test which was the reason the memorandum of reprimand was given to him * although the rater re-wrote both OERs, in both instances he revised the ratings upward * even though the senior rater's work ethic was flawed, that does not necessarily imply that his evaluations were defective * he did not show the GOMOR to be untrue or unjust and he did not show the contested reports contain serious administrative deficiencies or were not prepared in compliance with the applicable policy and regulation 18. On 28 December 1994, the U.S. Army Reserve Personnel Center, St. Louis, MO, published orders directing the applicant's honorable discharge from the USAR effective 12 August 1994. 19. The applicant provided a DODIG letter, dated 25 January 1996, addressed to his Member of Congress. This letter states the Military Whistleblower Protection Act did not require the DODIG to conduct an investigation when they did not receive a complaint within 60 days of the military member becoming aware of the adverse personnel actions at issue. a. While they do not rigidly adhere to the 60-day requirement, their ability to investigate cases involving personnel actions that occurred several years ago is substantially hindered by the passage of time. In the case of the applicant, the personnel actions occurred over 5 years prior to their letter. Furthermore, the ABCMR twice considered and denied his application for correction of those records. Nonetheless, they reviewed the decisional documents issued by the ABCMR in July 1992 and September 1993 and made the following observations: (1) He made a disclosure that was protected by statute. In 1988 and 1989, he disclosed to an IG allegations of wrongdoing by his senior rater. The FBI conducted a preliminary fact-finding investigation and referred the matter to the CID. The CID substantiated some of the allegations against the senior rater, whose records were flagged and he was transferred to the Retired Reserve effective 31 August 1990. (2) He suffered from adverse personnel actions after his disclosure. He received a memorandum of reprimand on 3 January 1989 for refusing to submit to a breathalyzer test. He received adverse OERs for the periods May 1988 through May 1989 and May 1989 through August 1989. He was notified of his involuntary release from active duty on 4 August 1989. (3) The record indicated that when a commander's inquiry regarding the validity of his contested OERs was conducted, the investigating official accepted as credible a statement made by his rater that the senior rater pressured him to write an adverse OER. The record is silent with regard to the motives of the senior rater to pressure the rater to adversely rate the applicant. The commander's inquiry also found that the rater subsequently rewrote the OERs and awarded the applicant higher ratings. The rater never indicated the final rewritten ratings awarded to the applicant were an inaccurate assessment of his performance. b. Although the applicant suffered from adverse personnel actions after his disclosure, it was not determined he suffered those adverse actions as a result of his disclosure. The record shows the same personnel actions would have been taken had he not made a protected disclosure, as there was an independent basis for the personnel actions apart from his whistleblowing activity. c. The letter of intent to involuntarily separate him cited several reasons for the action: substandard duty performance as documented in his OERs, neglect of performance of duties and inefficiency as documented in seven administrative oversights in his area of responsibility, and acts of personal misconduct as documented by his failure to pay child support and the memorandum of reprimand for refusing to submit to a lawfully requested blood alcohol test. d. The September 1993 ABCMR decision noted that "even though the senior rater's work ethics were flawed [as revealed by the CID investigation], that does not necessarily imply that his evaluation of the applicant's future potential was defective." The DODIG suggested he re-apply to the ABCMR if he could provide new information not previously considered. However, due to the untimeliness of his complaint and the passage of time, they were unable to be of further assistance. e. The applicant hand-wrote on the bottom of this letter that he submitted these DODIG findings to the ABMCR as new evidence; however, the official Record of Proceedings makes no reference to it. 20. On 14 March 2008, following multiple attempts to reopen his case, the applicant requested reconsideration of his two previous requests to remove the GOMOR and the two OERs from his records and to be reinstated in the AGR program. However, on 8 May 2008 (ABCMR Docket Number AR20080004886) the Board determined that: * although he raised many valid points regarding the ethical lapses of his former commander/senior rater in his military duties, and regarding the senior rater's unprofessional and possible criminal conduct as a civilian, he failed to provide compelling evidence that this was the sole or overriding factor upon which all the adverse actions in question were based * the applicant's record is full of instances of questionable conduct and documented poor duty performance unrelated to the OERs in question, and which alone support his ultimate removal from the AGR program * there was an insufficient evidentiary basis to support granting constructive active duty service credit, or to support his reinstatement in the AGR program 21. On 2 January 2009, he requested reconsideration of his three previous requests to remove the two OERs from his records. However, on 6 August 2009, (ABCMR Docket Number AR20090003644) the Board denied his request. The Board determined that: a. The evidence shows the IG considered allegations made by the applicant against his senior rater and could not substantiate any of those within its purview. The IG referred the allegations that were not within its purview to the CID and the CID substantiated just one allegation and referred it to civil authorities, who refused to prosecute the senior rater. b. The evidence supports the applicant's contention that there are "different sets" of the contested OERs; however, although the rater re-wrote the contested OERs, in both instances he revised the ratings upward. c. Although the senior rater's work ethic was flawed, that does not necessarily imply that his evaluation of the applicant's future potential was defective. d. The OSRB considered particularly significant the absence of anything in the rater's statements to the effect that the final versions of the two contested OERs were inaccurate evaluations. The OSRB also determined that the contested OERs appeared to represent a fair, objective, and valid appraisal of his demonstrated performance and potential during the periods in question. e. The contested OERs were prepared by the properly designated rating officials and are properly filed in the applicant's military records in accordance with the governing regulation. There is no evidence that it was improperly prepared or filed. Therefore, there is an insufficient basis for granting the applicant’s requested relief. 22. On 10 June 2013, by letter, the Chief of Staff, performing the duties of Principal Deputy Under Secretary of Defense for Personnel and Readiness stated, in response to the applicant's correspondence dated 24 November 2013 requesting review of the ABCMR decision on behalf of the Secretary of the Army in his case under the provisions of DOD Directive 7050.06 (Military Whistleblower Protection): a. He had been designated as the successor of the Deputy Under Secretary of Defense (Program Integration) for the purposes of DOD Directive 7050.06, paragraph 5.2, with decisional authority to review Military Whistleblower Protection Act appeals on behalf of the Secretary of Defense, by the Acting Under Secretary of Defense (Personnel and Readiness). b. He had carefully considered all of the materials the applicant submitted to him, the ABCMR, and the materials the Board examined in reaching a decision in his case. He did not find that the Board acted arbitrarily, capriciously, contrary to law, or that its determination was unsupported by substantial evidence. Accordingly, he sustained the ABCMR's decision made on behalf of the Secretary of the Army. This action, on behalf of the Secretary of Defense, was final. 23. On 16 July 2015, the applicant’s Member of Congress wrote a letter to the SA. He requested the SA rectify the wrongful acts committed against the applicant. The applicant served with distinction, yet his military career was cut short due to the illegal actions of his commanding officer. In 1987, he volunteered for the AGR Program where he served as a CPT under the command of COL RRE. He initially received outstanding OERs from COL RRE and the other raters; however, when he discovered COL RRE was improperly using military property and resources to conduct private civilian autopsies, he filed a disclosure with the DODIG. Due to this disclosure, COL RRE took unlawful retribution against him and coerced other OER raters to give him unacceptable ratings. These poor OERs forced him out of the military, thus ending his military career and placing undue financial hardship on him and his family. Since being involuntarily separated, he has worked tirelessly to clear his name and remove the poor OERs from his record. He is an honorable man who served with distinction and the injustice should be corrected. 24. Also on 16 July 2015, the applicant again applied to the ABCMR (Docket Number AR20150012593) for a fifth reconsideration of his prior requests for removal of his OERs for the periods ending 4 May 1989 and 6 August 1989 from his OMPF and reinstatement on active duty in the U.S. Army Reserve AGR program. In relation to this application: a. The Army Review Boards Agency requested and the U.S. Army Crime Records Center provided a memorandum, dated 10 August 2016, subject: Request for Sanitized ROI and MP Report for Official Use Purposes – (Applicant), stating a search of the Army criminal files indexes revealed no records pertaining to the applicant. b. The applicant was provided with a copy of this memorandum and in his response, dated 5 September 2016, he stated that had no response to the document, but did reiterate he provided information to the CID investigation of his former commander, COL RRE. He also sent a second brief statement and indicated that he is not sure if it was previously brought to anyone's attention, but he never signed his contested OERs. 25. He also provided three letters of endorsement from individuals with whom he worked during his time at 829th Station Hospital. a. A former colleague wrote in June 2015 that he served with the applicant at the 829th Station Hospital. One of his additional duties at the time was training management assistant. He trained the applicant and assisted him with training the unit's leaders. The hospital had not passed an annual inspection in years, yet with the leadership of the applicant, he and the section leaders were finally able to pass the Command Readiness Inspection in 1989. b. His former rater wrote in March 1990 that he was directed to write a negative OER pertaining to the applicant in October 1989. The pressure exerted on him by COL RRE was no different from the pressure he exerted on previous OERs. His own OER, wherein COL RRE rated him, was very bad. He believes this was COL RRE’s deliberate attempt at railroading the applicant and attempting to get rid of him. It was a very poor command climate. c. A former 2LT who worked in the OER section at the time wrote that she worked on the processing of the applicant's OER while performing her 2-week annual training at the 829th Station Hospital during the week of 22 May 1989 through 2 June 1989. When she delivered the OER with the rater's positive comments to the senior rater, COL RRE said he would complete the OER. She did not see the final OER at the time, but about 1 month later saw the multiple "1" ratings were replaced with "2s" and "3s" and possibly even some "4s." 26. On 6 December 2016, the Board determined that his OERs as re-written were essentially the objective valid appraisal of his demonstrated performance and potential during the periods in question. His rater, who rewrote the OERs, did not suggest the rewritten OERs are incorrect or were not satisfactorily adjusted to reflect his true objective appraisal of the applicant. Additionally, his involuntary release from active duty was not solely based on the OERs. His own documented and uncontested poor conduct and work ethic, as reflected in the GOMOR, pay garnishment, and failure of command inspections (not reflected in the OERs), could not be explained away by the poor conduct of his senior rater, however abhorrent it was. a. Following deliberation, the Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s previous decisions. As a result, the Board recommended removing from his record the OER for the rating period 5 May 1989 through 6 August 1989 and replacing it with a statement of non-rated time. The Board further recommended denial of so much of the application in excess of this relief. b. The OER for the rating period 5 May 1989 through 6 August 1989 was removed from his official records and replaced with a statement of non-rated time. REFERENCES: 1. Army Regulation (AR) 623-105 (OER Reporting System), in effect at the time, stated an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF was presumed to be administratively correct, to have been prepared by the proper rating officials, and to have represented the considered opinion and objective judgment of the rating officials at the time of preparation. The burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of a report, an applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. a. Paragraph 3-5, when it is brought to the attention of the commander that a report rendered by one of his or her subordinates may be illegal, unjust, or otherwise in violation of AR 623-105, he or she would look into the matter. The commander will conduct a CI and confine his or her inquiry to matters relating to the clarity of the report, the facts contained in the report, its compliance with the regulation, and the conduct of the rated officers and rating officials. The commander does not have authority to direct that an evaluation be changed and he/she may not use command influence to alter an honest evaluation of an officer by a rating official. b. Paragraph 4-13 stated that Part IV of the OER is prepared by the rater and provides instructions on the preparation of Part IVa. (Professional Competence). Specifically, the regulation requires rating on a scale of “1” to “5” (1 being high) to portray how well each statement describes the rated officer. The regulation also states that any comments on the strengths or weaknesses will be placed in the comments part of block “b” and that comments are only mandatory to explain or clarify ratings of “4” or “5” in Part IVa. d. Paragraph 4-27, among other reasons, any report with ratings or comments that in the opinion of the senior rater are so derogatory that the report may have an adverse impact on the rated officer’s career will be referred to the rated officer by the senior rater for comment. c. Paragraph 5-30, the primary purpose of the commander’s inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record. A secondary purpose is to obtain command involvement in clarifying errors or injustices after the OER is accepted at HQDA. However, in these after-the-fact cases this paragraph is not intended to be a substitute for the appeals process. The commander does not have authority to direct that an OER evaluation be changed, and the commander may not use command influence to alter the honest evaluation of an officer by a rating official. d. Paragraphs 5-32, an OER accepted by HQDA and included in the official record of an officer is presumed to have been prepared by the properly designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. e. Paragraph 9-7 states that the burden of proof in an appeal of an OER rests with the applicant. Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted. 2. AR 600-8-104 (Military Personnel Information Management/Records), in effect at the time, prescribed policies, operating tasks, and steps governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, Army Personnel Qualification Records, and Military Personnel Information Management as a work category. Table 2-1 (Composition of the OMPF) provided that an OER would be filed in the performance section of the OMPF. DISCUSSION: 1. The applicant served on active duty in the AGR program beginning on 5 May 1987. He was assigned to the 829th Station Hospital in Lubbock, TX. In August 1989, involuntary separation action was initiated against him for misconduct and substandard performance of duty. This action was based on: * substandard performance of duty * neglect in the performance of his duties and inefficiency * failure to process orders for an officer * failure to meet a suspense for the submission of a deployment packet * failure to ensure requests for military training were submitted and processed properly * unsatisfactory results in some areas during a Command Readiness Inspection * unsatisfactory results in the area of training management during an evaluation of inactive duty training conducted by Fifth U.S. Army * acts of personal misconduct, including garnishment of his military pay * failing to pay child support and issuance of a GOMOR * refusing to submit to a lawfully requested blood alcohol test after his arrest for driving while intoxicated 2. He received a substandard OER for the rating period 5 May 1988 through 4 May 1989 (contested OER). A subsequent commander's inquiry (not available for review) determined this OER was flawed in that his rater admitted to writing a poor evaluation of him in response to undue pressure from his senior rater to do so. That OER was not filed in his OMPF. It was re-written with more favorable comments. This is the OER that was filed in his OMPF and reviewed by the AGR continuation board that did not recommend his continuation in the AGR program. The contested OER appears to reflect the true objective opinions of the rater and senior rater at the time. 3. This revised and improved OER, however, was not the only reason for his involuntary release from active duty. There were many other instances of misconduct and/or infractions including his failure to pay child support, substandard duty performance, instances of neglect in the performance of his duties, and refusal to submit to a blood alcohol test after his arrest for driving while intoxicated. 4. CID investigated his allegations regarding his senior rater, including misusing a Government vehicle and personnel, receiving double compensation by performing a paid civilian autopsy while performing Reserve training duty, wrongfully using an active duty identification card to purchase merchandise at the Reese AFB Exchange, submitting a fraudulent or unsupported travel voucher claims, and being absent without leave during annual training. CID was only able to substantiate the double compensation for performing a civilian autopsy while performing Reserve training duty. 5. DODIG also reviewed his allegations and determined that although he suffered from adverse personnel actions after his disclosure (namely a poor OER and involuntary release from active duty), it was not determined he suffered those adverse actions as a result of his disclosure. The records show the same personnel actions would have been taken had he not made a protected disclosure, as there was an independent basis for the personnel actions apart from his whistleblowing activity. 6. The former senior rater retired, and after his retirement he was sentenced by a civilian court (subsequent to charges unrelated to the allegations leveled against him by the applicant) to 10 years of probation and revocation of his medical license, and ordered to pay $16,500.00 in restitution after he pleaded no contest to seven felony offenses of knowingly and intentionally falsifying autopsy reports while serving as a civilian forensic pathologist. 7. It is noted here that although the rater and/or senior rater may have acted improperly, this did not detract from their ability to render their opinions on the quality of the applicant’s performance or potential. Likewise, the fact that the rating official amended the contested OER does not prove the OER as rewritten was not the objective valid appraisal of the applicant’s demonstrated performance and potential during the period in question: * the rater who revised the OERs does not suggest the rewritten OER is incorrect or was not satisfactorily adjusted to reflect his true objective appraisal of the applicant * the applicant’s involuntary release from active duty was based on his overall poor conduct and work ethic as evidenced by his GOMOR, past garnishment, and failed command inspection 8. By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature. The Board must determine if this standard has been met. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170016871 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170016871 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2