As we previously noted, LTC Lakin has filed a challenge to his OER. While a news release issued by LTC Lakin’s spokesperson claims that the OER at issue is posted on safeguardourconstitution.com, that doesn’t appear to actually be the case. Without access to that OER, it’s not possible to draw any firm conclusions about the challenge. But portions of the challenge at least appear to be questionable.
LTC Lakin writes:
The changes that have been placed on the OER with thru date of 20100412 include alleged actions that should NOT be included on OER per AR 623-3 para 3-23 and 3-24. My counseling DA Form 4856 dated 19 April 2010 even states that “a flag was imposed upon you on 12 April 2010 due to possible adverse action being taken against you. . . . The flag will remain in place pending the completion of any investigation and disposition of any allegations of misconduct.”
Again, while we can’t conclude for sure without seeing the OER, this appears to argue that it’s impermissible to refer to his stated intention to refuse to obey orders until the charges against him are resolved. He also appears to argue that being “flagged” supports that conclusion. But the very source that he cites — paragraph 3-23 of Army Regulation 623-3 — rebuts that claim.
That paragraph provides that “[r]eferences will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to HQDA.” This would prohibit the OER from referring to the fact that LTC Lakin has been charged. But it does not prohibit references to the misconduct underlying those charges. The same paragraph provides: “Any verified derogatory information may be entered on an evaluation. This is true whether the rated Soldier is under investigation, flagged, or awaiting trial. While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain’s use of verified derogatory information.”
So if a servicemember were to — oh, I don’t know — make a video in which he proclaims his intention to disobey orders and post it on the Internet before proceeding to actually disobey orders, an OER could include verified derogatory information about that highly unprofessional conduct that indicates that commissioned officer should never be promoted to a higher grade.