I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.
Mr. Carl W. S. Chun
Mr. Robert J. McGowan
The following members, a quorum, were present:
Mr. James E. Vick
Ms. Barbara J. Ellis
Mr. William D. Barr
The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.
The applicant requests correction of military records as stated in the application to the Board and as restated herein.
The Board considered the following evidence:
Exhibit A - Application for correction of military
Exhibit B - Military Personnel Records (including
advisory opinion, if any)
APPLICANT REQUESTS: In effect, that the determination of the 1999 General Officer Assignment Advisory Board (GOAAB) that he was not eligible for initial or further assignment to United States Army Reserve (USAR) General Officer (GO) positions be voided and that he be reconsidered by a special selection board.
APPLICANT STATES: That the January 1999 GOAAB declared him ineligible for assignment to a USAR GO position now or in the future. He adds that the Medical Corps (MC) representative to that board was, in effect, biased against him and should have recused himself from any review of the applicant's record.
In support of his request, the applicant contends that he has proof of retaliatory action and unfair practices taken against him by the MC representative to the GOAAB when that individual was his commander. An index of the applicant's supporting documentation is attached.
EVIDENCE OF RECORD: The applicant's military records show:
He is a Colonel, MC, serving in the USAR. In 1995 as a Lieutenant Colonel (promotable), he was selected to command the 343rd Combat Surgical Hospital, 8th Medical Brigade, 77th Regional Support Command, USAR. He took command on 9 July 1995.
During his tenure as commander, the applicant was praised by his superiors for his accomplishments and criticized by them for his shortcomings. Shortcomings generally fell into the category of taking action independent of his higher headquarters and in furtherance of personal goals and objectives, not unit goals and objectives. On 12 March 1996, the applicant’s rater, a Brigadier General, reminded him that he should consider the chain of command activity calendar prior to scheduling classes for his personal military agenda.
On 18 March 1996, the applicant received a formal counseling statement from his rater addressing his responsibility for several actions that had impacted negatively on the chain of command. The applicant's senior rater, a Major General, recommended a letter of reprimand (LOR); however, the applicant’s rater declined to issue a LOR at that time.
In a Memorandum For Record (MFR) dated 11 January 1997, the applicant’s rater highlighted several issues that the Command had relative to the applicant’s conduct as commander of a combat support hospital. In the memorandum, the rater noted that the applicant falsely represented himself as a colonel/0-6 prior to actually being promoted, that he set up his own promotion ceremony at Fort Dix, New Jersey in September 1995 when his unit was there for weapons qualification, and that he directed a subordinate in his unit to recommend him for an achievement medal and a civilian award. It was stated that the applicant was verbally counseled as to the above in a face-to-face session with his rater.
On 13 and 15 January 1997, the applicant wrote MFRs rebutting his rater’s MFR of 11 January 1997. He stated that since he had been selected for promotion to colonel/O-6, he felt it mission essential that he represent himself as a colonel when he traveled to SOUTHCOM on unit business. He stated that he set up his promotion ceremony at Fort Dix [apparently in advance of his promotion date, but not his date or rank] because he needed to establish himself as senior officer in the unit. He declined to characterize his June 1996 meeting with his rater as a counseling session. He concluded by stating that the attempt to counsel him by MFR approximately 6 months after the closure of the rating period for his OER is contrary to regulations outlined in AR 623-105; therefore, he must consider it an attempt at punitive action directed toward him.
The applicant received an OER for the period 950709-960708, his first year in command of 343rd Combat Support Hospital. In Part IVb (Professional Ethics), the rater stated, "[Applicant] needs to improve on his command demeanor and relationship with higher headquarters" and "[Applicant] should insist on the highest ethical standards from his staff at all times."
On 1 May 1997, the applicant requested that the Commanding General (CG), US Army Reserve Command (USARC) initiate a commander’s inquiry into what he perceived to be serious violations of his rights to a fair and accurate evaluation. On 22 May 1997, the USARC Deputy Chief of Staff for Personnel acknowledged that the CG had received the applicant’s request for a commander’s inquiry into the circumstances of his OER.
On 4 June 1997, the applicant formally received his OER as a referred report. On 20 June 1997, the applicant submitted a rebuttal to the referred OER. In his rebuttal, he expressed his concerns regarding the negative comments and tone set forth by the rater. He stated that he perceived the comments to be a serious violation of his rights under Army Regulation 623-105 to receive a fair and accurate evaluation. He further stated that he had no fundamental understanding of his rater’s implications regarding ethical standards and if his rater truly questioned his or his staff's ethics, he should have taken immediate action instead of waiting until his OER was due. The applicant went on to point out other discrepancies he has noted in the narratives of the rater and senior rater. The rater and senior rater, in effect, stated that the applicant’s potential is best served as a staff doctor. The applicant concluded his rebuttal stating that as a citizen-soldier, he had dedicated a tremendous amount of personal time, money, and energies to the USAR and believed that his duty performance reflected that expenditure.
On 16 January 1998, the applicant again requested that the USARC CG initiate a commander’s inquiry into the circumstances of his evaluation. On 3 March 1999, the commander’s inquiry found that the applicant’s OER was correct and complete as written and in compliance with AR 623-105.
The applicant's records were placed before the January 1999 GOAAB for consideration for assignment to USAR GO positions. On 25 May 1999, the applicant received a memorandum from the Chief, USAR advising him of his failure to be selected and his being ineligible for initial or further assignment to USAR GO positions.
On 31 May 1999, the applicant wrote the Chief, USAR pointing out that a grave mistake had been made and questioning why he was restricted from initial or future participation in GO positions. He concluded by asking for an investigation of this error. Also on 31 May 1999, the applicant requested under the Freedom of Information Act (FOIA) that the GO Management Office (GOMO) provide any and all materials pertaining to the 1999 GOAAB. Also on 31 May 1999, the applicant wrote the Secretary of the Army requesting reconsideration of his eligibility for general officer positions in the USAR.
On 11 June 1999, the Chief, USAR responded to the applicant by stating he had no more information regarding the Board’s decision to identify him as ineligible for further assignment to USAR general officer positions.
On 15 June 1999, the applicant wrote his congressman requesting a full investigation on what grounds he was eliminated from future competition and advancement in the USAR.
On 6 July 1999, the applicant wrote his United States Senator inviting him to his graduation from the Army War College and requesting a full investigation of the grounds on which he was eliminated from future competition and advancement in the USAR.
On 14 July 1999, the GOMO responded to the applicant’s FOIA request and noted that the requested information was attached. It showed that the applicant's rater on his 960708 OER had served on the January 1999 GOAAB.
On 11 January 2000, the applicant filed an application (DD Form 149) with the ABCMR for relief from a determination of the January 1999 GOAAB that rendered him ineligible for initial or further assignment to United States Army Reserve (USAR) General Officer Positions.
In the processing of this case, a staff advisory opinion dated 15 June 2000 was obtained from the GOMO. The GOMO noted that they reviewed the applicant’s DD Form 149, attached documents, and the records pertaining to the January 1999 GOAAB. The staff opined that the applicant based his complaint on perceived inequities and injustices allegedly perpetrated against him by his rater prior to the GOAAB. The GOMO staff determined that the rater was eligible for appointment as a GOAAB voting member, was properly appointed, and that all board members complied with the guidance delineated in the GOAAB memorandum of instruction (MOI). Additionally, the board was not aware of any attempt to coerce or improperly influence any action in the formulation of the board’s recommendations. The applicant provided no evidence of any conduct during the board’s proceedings or post-board conduct by the rater that would cast doubt on the board’s proceedings. Notwithstanding the purported conflict between the applicant and his rater prior to the board, the board’s certification regarding the propriety of the proceedings, and the absence of any evidence indicating the board failed to follow the guidance delineated in the MOI, the GOMO staff concluded that no error or injustice occurred with regard to the composition of the GOAAB and the GOAAB’s consideration of the applicant’s file. The GOMO staff coordinated the advisory opinion with the office of The Judge Advocate General and the office of The General Counsel, Army.
On 22 June 2000, the advisory opinion was forwarded to the applicant for review and rebuttal. On 22 July 2000, the applicant requested a 30-day extension of time in the preparation of his rebuttal to the 15 June 2000 advisory opinion.
On 16 October 2000, the staff of this Board wrote a letter to the applicant informing him that his application would be held without action until the Department of the Army Inspector General (DAIG) concluded its investigation of the same issues presented to this Board. In July 2001, the DAIG concluded its investigation into the applicant's OER; the performance of the applicant's rater as a member of the GOAAB; an allegation that the rater, as a brigade commander, failed to forward official correspondence from the applicant; and that the rater, as a brigade commander, failed to address subordinate misconduct. The DAIG found none of the applicant's allegations to have merit.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:
1. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
2. The applicant demonstrated deficiencies as a commander that were properly documented by his chain of command. His OER for the period 950709-960708 contained various comments that caused the report to be referred to the applicant.
3. The applicant's records went before the January 1999 GOAAB and he was not selected for a USAR GO position or future consideration for such positions. Although the applicant's rater on his 960708 OER served on the GOAAB, he performed his duties in complete compliance with all board guidelines and the applicant's nonselection was not due to any bias or discrimination by his former rater.
4. The CG, USARC conducted a commander's inquiry that found no irregularities in the applicant's OER and determined it to be a valid representation of his performance. The GOMO found the conduct of the January 1999 GOAAB to be in compliance with all guidance in the memorandum of instruction and found no discrimination against the applicant. The DAIG dismissed all of the applicant's allegations as unfounded.
5. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
__JEV__ __BJE___ ___WDB_ DENY APPLICATION
Carl W. S. Chun
Director, Army Board for Correction
of Military Records
LIST OF SUPPORTING DOCUMENTATION
The applicant submitted the following supporting documentation with his application:
1. Letter to the Board, dated 13 January 2000.
4. Copies of Memoranda for Commander, 8th Medical Brigade, dated 6 November 1995, 14 February 1996, 26 April 1996, 9 July 1996, and 9 October 1996, subject: 343rd Combat Support Hospital Quarterly Update.
4. Copy of undated 3-page "Summation of Presentation to Military Board of Corrections."
5. Copy of undated 3-page "Resume of Service Career of [Applicant]."
6. Copy of undated "Addendum A to Resume of Service Career [of applicant].
7. Copy of applicant's 23 July 1999 diploma from US Army War College.
8. Copy of applicant's 1999 Master of Arts diploma from Salve Regina University.
9. Copy of applicant's 23 July 1999 DA Form 1059-2, Senior Service College Academic Evaluation Report, US Army War College.
10. Copy of applicant's academic transcript, US Army War College.
11. Copy of applicant's 29-page Curriculum Vitae.
12. Copy of Index of Tabs - Tabs 1A-24.
13. Copy of letter, dated 21 November 1995, from an official at the US Embassy, Quito, Peru, to the applicant, thanking him for his unit's 2-week exercise in-country.
14. Copy of a memorandum for record, dated 7 September 1995, from the Logistics Section, 8th Medical Brigade stating that there were no funds to support commercial bus transportation for FTX and weekend training.
15. Copy of letter, dated 18 September 1995, from the applicant to an officer thanking him for his assistance.
16. Copy of a 3-page Unit Evaluator's Narrative, dated 18 November 1995, concerning training conducted by the 343rd Combat Support Hospital and stating that the unit demonstrated "excellent organizational skills," ability to work as a cohesive team," and "superb control, maintenance and accountability of supplies and equipment." The evaluator also found problems with the Field Standard Operating Procedure, and enlisted soldiers and junior noncommissioned officers challenging orders and causing disruptions.
17. Partial copy of the letter cited at #13 above.
18. Copy of memorandum, dated 22 September 1997, from the USASOC IG stating that the USSOCOM commander had concluded an inquiry and upheld the actions taken against the applicant.
19. Copy of memorandum, dated 22 September 1997, from the USASOC chief of staff stating that the applicant received due process in the handling of his relief-for-cause and imposition of the subject GOMOR.
20. Copy of an unsigned, handwritten letter, dated 27 December 1995, written on Brigadier General stationery and thanking the applicant for his "good work."
21. Two copies of a 13 December 1995 1st Endorsement to a 29 November 1995 memorandum from the applicant, subject: [Request to attend] USR Workshop, informing the applicant that his request was returned without action as the 77th Reserve Support Command hosts a similar conference.
22. Copy of memorandum for record, dated 21 December 1995, by the applicant stating that, upon checking with the 77th RSC, no USR workshops were scheduled for the near future.
23. Copy of memorandum, dated 16 January 1996, from the applicant, subject: Trip Report (USR/PC-ASORTS).
24. Copy of letter, dated 31 January 1996, from the applicant to the Commander, ARPERCEN asking that he be allowed to attend RCNCIS.
25. Copy of letter, dated 16 February 1996, from the Military Education Branch, ARPERCEN confirming that applicant had been selected to participate in RCNCIS seminar April 14-20, 1996.
26. Copy of Memorandum, dated 26 February 1996, from Commander, 8th Medical Brigade to Commander, 77th Regional Support Command nominating the applicant for the NAACP's "Roy Wilkins Award."
27. Copy of 2 pages (incomplete) of the applicant’s undated, self-authored epistle "Mission for Equality."
28. Copy of Memorandum, dated 11 March 1996, from applicant to Commander, 8th Medical Brigade, informing him that applicant would not be able to participate in the annual Commander's Conference on 20 April 1996 due to his attendance at the RCNCIS seminar.
29. Copy of Memorandum, dated 12 March 1996, from Commander, 8th Medical Command to applicant confirming his absence from the annual Commander's Conference while reminding him that he will have missed two consecutive conferences, that substitute attendees are not customarily authorized, and that he should consider 77th RSC and 8th Medical Command activities before planning his "personal military agenda."
30. Copy of a 20 March 1996 TDY order directing the applicant to attend the USAR Training Leader Facilitator Course for 10 days on or about 19 April 1996.
31. Copy of an 18 March 1996 Memorandum of Formal Counseling from Commander, 8th Medical Brigade to applicant concerning "several actions [by the applicant] . . . which have caused discredit to the 8th Medical Brigade and the 77th Regional Support Command." The counseling basically involved matters dealing with the applicant's circumvention of his chain of command.
32. Copy of a 29 April 1996 note from a CSM applauding applicant's efforts in producing a newsletter.
33. Copy of an undated 3-page newsletter.
34. Copy of 17 May 1996 letter from applicant to a CSM thanking him for his 29 April 1996 note and asking that a CSM slot be developed as soon as possible [ostensibly for applicant's unit].
35. Copy of a 16 July 1996 note from Commander, 8th Medical Brigade to applicant thanking him for participating in the 8th Medical Brigade Symposium.
36. Copy of a 28 September 1996 note from a Navy Rear Admiral thanking the applicant for his support to the Joint Task Force Surgeons' Training Seminar.
37. Copy of a 20 September 1996 memorandum, Subject: OERS.
38. Copy of a 2 October 1996 memorandum from applicant to Commander, 8th Medical Brigade, Subject: Forward Support Package Combat Support Hospital, in which the applicant argues that his unit should be given FSP status, not a sister unit.
39. Copy of a 28 October 1996 HQ, 8th Medical Brigade memorandum for the applicant, Subject: Memorandum for FSP Status for 343rd Combat Support Hospital, dated 2 October 1996, in which applicant's commander explains that the briefing provided for the 344th General Hospital relative to FSP status was for "comparative purposes" and not because that unit was being considered for FSP status. It chides the applicant for a response that was not "positive and cohesive in spirit," for presenting inaccurate data about the applicant's unit, and advises that the applicant seek wise and considered counsel prior to committing to such an action.
40. Copy of a 7 November 1996 memorandum from the applicant to the Commander, 77th RSC forwarding applicant's quarterly reports.
41. Copy of a 20 January 1997 note from the Commander, 77th RSC to the applicant congratulating him for his selection to attend the nonresident AWC course.
42. Copy of 16 December 1996 memorandum from the Cdr, 8th Med Bde, Subject: Awards, reminding subordinate commanders to take every opportunity to recommend deserving soldiers for awards.
43. Copy of a 16 July 1996 letter from a doctor who performed annual training with the applicant's unit.
44. Copy of two 17 July 1996 facsimile header sheets.
45. Copy of applicant's OER Support Form.
46. Copy of an incomplete OER for the applicant in which he is downgraded for "displays sound judgment" and "sets and enforces high standards" and only graded as "usually exceeded [performance] requirements" and "promote with contemporaries." This document also contains a sheet of words used in the OER along with definitions [presumably created by the applicant].
47. Copy of a 10 January 1997 MFR written by the supervisory staff administrator of the applicant's unit concerning a telephone call from a staff officer at 8th Med Bde asking for a copy of the counseling statement previously given to the applicant.
48. Another copy of Item 31.
49. Copy of an 11 January 1997 MFR by the Cdr, 8th Med Bde, Subj: OER for [applicant], Counseling Session, in which: the applicant, while still a LTC in Aug 95, represented himself as a COL; the applicant was promoted to COL by the Commander, Fort Dix, New Jersey; the applicant sent a self-authored approval to attend a conference at USSOUTHCOM; the applicant received a negative counseling statement; the applicant directed a subordinate to recommend him for an Army Achievement Medal in May 1996; the applicant received a verbal counseling at the Meadowlands (NJ) Hilton Hotel by the Cdr, 8th Med Bde; the applicant directed a subordinate to produce a written recommendation for "outstanding civilian award for himself."
50. Copy of 5-page rebuttal to the above OER counseling, dated 13 January 1997, in which the applicant states: that he basically did misrepresent himself as a COL because he ". . . would be dealing with persons of high rank . . . [and] determined it mission essential;" that the statement that he had the Commander, Fort Dix promote him [in advance of his actual promotion date] was "fundamentally correct," but he [applicant] deemed it "imperitive to move in a timely fashion to a senior officer status, outranking my subordinates which had been so authorized;" that the facts concerning the USSOUTHCOM conference are wrong; that he never received a 'counseling session,' only a memorandum of counseling; that the Chief of Staff, 8th Med Bde, "denoted in written memorandum . . . that there is no regulation opposing [his having a subordinate put him in for an award];" that there was no 'face-to-face' counseling session at the Hilton Hotel, that he met with the Cdr, 8th Med Bde in his hotel room and discussed issues while the Cdr packed, but there was never a follow-up written record, so there could not have been a 'face-to-face' counseling.
51. Copy of 31 January 1997 note from Cdr, 8th Med Bde stating that he had asked the applicant to provide input for applicant's OER and was disappointed that he had chosen instead to disagree with his [Cdr's] assessment of applicant's behavior. The note indicates that the Cdr was forwarding the OER to the Cdr, 77th RSC for a senior rating.
52. Copy of a 10 April 1997 facsimile header.
53. Copy of an incomplete OER for the applicant for the period 950709-960708. The rater (Cdr, 8th Med Bde) gave him a '2' rating for displays sound judgment and also for sets and enforces high standards. In narrative comments, the rater said, "[Applicant] needs to improve on his command demeanor and relationships with higher headquarters" and "[Applicant] should insist on the highest ethical standards from his staff at all times." He indicated that the applicant "usually exceeded [performance] requirements" and should "promote with contemporaries." There was a page of handwritten narrative comments attached.
54. Copy of an 11 April 1997 facsimile header from the Cdr, 8th Med Bde to the applicant stating, "Congratulations! I have agreed to change Part IVa to all 1's and place you in block 1 in art Vb on your pending OER."
55. Copy of an incomplete OER for the applicant for the period 950709-960708. This time the rater (Cdr, 8th Med Bde) gave him a '1' rating for displays sound judgment and also for sets and enforces high standards. In narrative comments, he continued to say, "[Applicant] needs to improve on his command demeanor and relationships with higher headquarters" and "[Applicant] should insist on the highest ethical standards from his staff at all times." He indicated that the applicant "always exceeded [performance] requirements" but should "promote with contemporaries." The narrative comments were typed.
56. Copy of a completed, unsigned OER for the applicant for the period 950709-960708. The rating is as stated in Item 55, above. The senior rater gave the applicant a one block for potential, but said he would be best utilized in a staff position in the future.
57. Copy of the completed OER for 950709-960708 signed by all parties as of 21 May 1997.
58. Copy of a 1 May 1997 memorandum from the applicant to the Cdr, US Army Reserve Command, Atlanta, Georgia, asking for a commander's inquiry into his OER.
59. Copy of a 22 May 1997 letter from HQ, USARC, Atlanta, GA to the applicant stating that the OER was still pending and that his request was, therefore, premature.
60. Copy of a 4 June 1997 memorandum referring the 950709-960708 OER to the applicant as adverse.
61. Copy of a 20 June 1997 memorandum from the applicant to the Cdr, 77th RSC rebutting his referred OER.
62. Copy of a 6 August 1997 memorandum from the Cdr, 77th RSC to the Cdr, ARPERCEN upholding the rating given in the subject OER.
63. Copy of a 16 January 1998 memorandum from the applicant to the Cdr, US Army Reserve Command, Atlanta, Georgia, asking for a commander's inquiry into his OER.
64. Copy of an OER for the applicant for the period 960709-970504.
65. Copy of an OER for the applicant for the period 970505-980504.
66. Copy of a 5 March 1999 memorandum from HQ, USARC, Atlanta, GA to the applicant providing the results of the commander's inquiry into his OER for the period 950709-960708.
67. Copy of a 3 March 1999 memorandum from the CG, USARC, Atlanta, GA to the applicant stating that as a result of his commander's inquiry, the subject OER was found to be correct and complete as written.
68. Copy of USARC Label 1-R, "Personal In Nature."
69. Copy of front of OER for the period 950709-960708.
70. Copy of Item 60.
Copy of Item 61.
Copy of Item 61.
73. Copy of 25 May 1999 memorandum for the applicant from the Chief, Army Reserve notifying him that the January 1999 General Officer Assignment Advisory Board (GOAAB) had identified him as ineligible for initial or further assignment to USAR General Officer positions.
73. Copy of letter from the applicant to the Chief, Army Reserve asking that the GOAAB's decision be changed.
74. Copy of 31 May 1999 memorandum from applicant to DA GOMO asking for "any and all materials pertaining" to his ineligibility for a GO position.
75. Copy of 31 May 1999 letter from the applicant to the SECARMY asking that he reverse the GOAAB's decision.
76. Copy of a roster of board members for the January 1999 GOAAB with the name of the applicant's former rater (and former commander of 8th Med Bde) circled.
77. Copy of an 11 June 1999 letter from the Chief, Army Reserve stating that there is no further information available concerning why the GOAAB identified the applicant as ineligible for further assignment to a USAR GO position.
78. Copy of a 15 June 1999 letter from the applicant to Hon Robert Brady, US Rep in Congress, requesting a "full investigation on what grounds I was eliminated from future competition and advancement in the USAR."
79. Copy of a 6 July 1999 letter from the applicant to US Sen Arlen Specter, requesting a "full investigation on what grounds I was eliminated from future competition and advancement in the USAR."
80. Copy of a 14 July 1999 letter from Chief, GOMO to the applicant providing information requested under the FOIA.
81. Copy of a 15 January 1999 Memorandum of Instruction to the January 1999 GOAAB (w/ annex)
82. Copy of a 17 November 1999 letter from Sen Arlen Specter to the applicant forwarding an Army response to the Sen's inquiry.
83. Copy of a 2 November 1999 letter from the Chief, GOMO to Sen Arlen Specter stating that the applicant's only recourse is to contact the DAIG or apply to the ABCMR.
84. Copy of a 13 December 1999 letter from the DAIG to the applicant stating that the DAIG will investigate allegations of improprieties by the former commanders of the 8th Med Bde and 77th RSC.