RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060005995


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  




Acting Director



Analyst


The following members, a quorum, were present:



Chairperson



Member



Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his DA Form 67-9 (Officer Evaluation Report, or OER) for the period 20030816-20040420 be removed from his Official Military Personnel File (OMPF) or, in the alternative, that all entries in Part VII (Senior Rater) be deleted and a statement added that no senior rater was available.

2.  The applicant states, in essence, that administrative and substantive errors have resulted in a substantial injustice.  The administrative errors are based on numerous violations of Army Regulation (AR) 623-105.  The substantive errors are based on violations of the fundamental principles and purposes of the Officer Evaluation Reporting System.  He adds "baseless and unfounded allegations" created the situation which led to the unfair treatment he received in the OER process.

3.  The applicant provides:

	a.  A 19 April 2006 memorandum for the Army Board for Correction of Military Records (ABCMR) with a return address change as of 1 November 2006.

	b.  A 20 April 2006 memorandum for the Commander, US Army Human Resources Command (HRC), Alexandria, VA appealing the subject OER.  In this document, the applicant outlines the OER's administrative errors as an improper rating chain that was never announced, and the failure of the rating chain to provide him with rater and senior rater support forms.  The applicant outlines substantive errors as:  improper evaluation by his senior rater; the senior rater never met with him and rated him "FULLY QUALIFIED" based upon a pre-judgment of his [applicant's] legal dilemma.

	c.  A 27 April 2004 memorandum from office of The Staff Judge Advocate General, Fort Stewart, for Headquarters, Department of the Army (HQDA), Deputy Chief of Staff, G-1, Officer Special Review Board (OSRB) written by the applicant's senior defense counsel.

	d.  A 28 January 2004 Motion to Dismiss for Selective Prosecution submitted by the applicant's counsel to the United States Army Second Judicial Circuit, Fort Stewart, GA.

	e.  A 26 March 2004 memorandum from the Commanding General, 3rd Infantry Division, Fort Stewart, GA withdrawing and dismissing without prejudice the court-martial charges against the applicant.


	f.  A 19 April 2006 memorandum of support for the applicant's OER appeal written by the former 3rd Infantry Division Command Sergeant Major.

	g.  A 7 April 2006 electronic mail (email) forwarding the OER rating scheme for the Office of The Chief of Staff, 3rd Infantry Division.

	h.  A 19 April 2006 memorandum stating the applicant's security clearance had never been revoked; that an investigation remains open; and the applicant has an interim TOP SECRET clearance.

	i.  A 4 March 2005 memorandum for the applicant from the US Army Central Personnel Security Clearance Facility, Fort George G. Meade, MD.

	j.  OSRB OER Appeal Case Summary for the subject OER and an OER immediately prior to the subject OER.

	k.  The subject OER.

	l.  A timeline created by the applicant.

	m.  A 6 June 2006 memorandum for the Army Board for Correction of Military Records (ABCMR) authored by the applicant and submitted under separate cover.

	n.  An 18 April 2006 email concerning the applicant's security clearance.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is a male Regular Army (RA) Major.  In December 2002, he was assigned to Headquarters and Headquarters Company, 3rd Infantry Division as the Division G-5 (Civil Affairs Officer), and he was located with the Division HQ at Camp New York, Kuwait.

2.  At approximately 2130 hours, 5 December 2002, a Captain and two enlisted Soldiers were checking tactical vehicles parked on Camp New York when they observed a non-tactical vehicle (NTV) parked near several Bradley Fighting Vehicles.  There were two individuals in the back seat of the NTV.  When the three Soldiers approached the NTV, a male jumped into the driver's seat and drove off without headlights.  The incident was reported and an AR 15-6 investigation was directed by the 3rd Infantry Division Chief of Staff.

3.  The AR 15-6 investigation determined that the applicant and a female Private First Class (PFC) were the two individuals in the NTV on 5 December 2002.  The Captain provided a sworn statement that he positively identified the applicant as the person who jumped from the back seat to the driver's seat and drove away.  One of the enlisted Soldiers provided a sworn statement that he identified a certain female PFC as being in the back seat of the NTV.  The other enlisted Soldier provided a sworn statement that the two individuals in the back seat of the NTV were engaged in what appeared to be a sex act.

4.  The AR 15-6 investigating officer also interviewed the Division G-5 NCOIC (Noncommissioned Officer-in-Charge) who provided a sworn statement that the applicant and the female PFC were involved in what he perceived as an improper relationship and that he "counseled both about this perception."

5.  The applicant and the PFC each provided sworn statements saying that there was no improper relationship.  The applicant stated that on 5 December 2002, he returned from a trip to Doha, Kuwait; went to the Division Tactical Operations Center where he gave his keys to an unidentified NCO variously described as either a male, or possibly a female; checked his email; and went to his tent where he encountered a Lieutenant Colonel (LTC) tent mate reading a book.  The tent mate could not confirm or deny having met the applicant that night.

6.  On 13 December 2002, the AR 15-6 investigation concluded the applicant was guilty of the conduct alleged and recommended he be charged with fraternization with a female PFC under Article 134, Uniform Code of Military Justice (UCMJ), and failure to obey orders/regulations under Article 92, UCMJ.

7.  On 31 January 2003, the Deputy Division Commander, a Brigadier General, informed the applicant that he was considering whether to punish him under Article 15, UCMJ for violating a lawful general regulation, to wit:  AR 600-20, Army Command Policy, based on his having an inappropriate relationship with a female PFC, and for making a false official statement to the AR 15-6 investigating officer, to wit:  the he did not have an improper relationship with a female PFC.  The applicant, having been afforded the opportunity to consult with counsel, elected not to demand trial by court-martial and accept the Article 15 in closed proceedings.  On 8 February 2003, the Deputy Division Commander imposed a punitive letter of reprimand.  He also directed the DA For 2627 (Record of Proceedings Under Article 15, UCMJ) be filed in the applicant's performance fiche of his OMPF.


8.  On/about 14 February 2003, a little more than 1 month before the start of Operation Iraqi Freedom, the applicant was returned to the United States and Fort Stewart.  He was assigned to the Office of The Chief of Staff with duties as a special project officer.  He held this duty assignment for 8 months, during which time he was the subject of an Article 32 hearing on charges developed during the AR 15-6 investigation in Kuwait.  

9.  On 20 April 2004, the applicant received the subject OER.  An OER is an integral part of the Officer Evaluation System (OES) designed to identify officers who are best qualified for promotion and assignment to positions of higher responsibility.  It also identifies officers who should be kept on active duty, those who should be retained in grade, and those who should be eliminated.  Under the OES, an officer is evaluated on his or her performance and potential.  The OER is used for duty evaluations for a specific rating period.

10.  The applicant received the subject OER as a Permanent Change of Station (PCS) rating for the period 20030816-20040420.  During this period of service, he was assigned to the Special Action Office of the Chief of Staff.  His rater was a LTC serving as the Special Project Officer; the senior rater was the Chief of Staff, a Colonel (COL).

11.  Part IV (Performance Evaluation – Professionalism) of the OER is completed by the rater.

	a.  In Part IVa (Army Values) the rated officer is evaluated on adherence to Army values and the dimensions of leadership doctrine that define professionalism in the officer corps. The applicant received a "YES" rating in all seven areas, which indicates that he met the expectations of his rater in these areas.

	b.  In Part IVb (Leader Attributes/Skill/Actions), the applicant received ratings of "YES" for all areas.

12.  Part V (Performance and Potential Evaluation) is also completed by the rater.  The rated officer's performance and potential for promotion is compared with that of his or her contemporaries.

a.  In Part Va (Performance and Potential), there are four possible block checks:  OUTSTANDING PERFORMANCE, MUST PROMOTE;

SATISFACTORY PERFORMANCE, PROMOTE; UNSATISFACTORY PERFORMANCE, DO NOT PROMOTE; and OTHER.  The applicant received a rating of " OUTSTANDING PERFORMANCE, MUST PROMOTE."

	b.  In Part Vb (Comments), the rater stated that the applicant "...took appropriate actions to ensure assigned tasks were accomplished...His organizational and planning skills contributed to the successful execution of the Division's role in the 84th reunion of the 3d Infantry Division Association.  Additionally, he assisted in the preparation and coordination of several Army Audit Agency (AAA) visits and General Accounting Office (GAO) audits involving Division assets.  [Applicant] should be considered for both advanced military schooling and promotion.  He shows potential to be assigned in positions of increased responsibility."

13.  Part VII (Senior Rater (SR)) evaluates the rated officer's potential for promotion to the next higher grade, potential compared with other officers rated by the SR, and offers comments on performance and potential.

	a.  In Part VIIa (Promotion Potential), the SR rated the applicant "Fully Qualified."

	b.  In Part VIIb (Comparison With Other Officers), the SR makes an assessment of the rated officer’s overall potential in comparison with all other officers of the same grade the SR has rated or currently has in the SR population.  This potential is evaluated in terms of the majority of officers in the population.  If the potential assessment is consistent with the majority of officers in that grade the SR will “x” the CENTER OF MASS (COM) box.  If the rated officer’s potential exceeds that of the majority of officer’s in the SR's population, the SR will “x” the ABOVE CENTER OF MASS box.  The intent is for the SR to use this box to identify their upper third in each grade; however, in order to maintain a credible profile, the SR must have less than 50% of the ratings of a grade in the top box.  Fifty percent or more in the top box will result in a CENTER OF MASS label.  If the rated officer’s potential is below the majority of officers in the SR's population for that grade and the SR believes the rated officer should be retained for further development, the SR will “x” the BELOW CENTER OF MASS-RETAIN box.  If the rated officer’s potential is below the majority of officers in the SR’s population for that grade and the SR does not believe the rated officer should be retained on active duty the SR will “x” the BELOW CENTER OF MASS-DO NOT RETAIN box.  The SR rated the applicant as COM.


c.  In Part VIIc (Comments), the SR stated that the applicant's performance "...met the standard in all areas.  [Applicant] is an innovative problem solver who can identify the key issues and apply his knowledge and experience to achieve mission success.  Clearly a talented officer that makes a contribution to the overall team effort.  Shows potential for continued success in the Army, consider for promotion and advanced schooling."

14.  On 22 November 2005, the applicant appealed the subject OER (and a second OER) to the OSRB seeking to delete or amend the OER.  He contended that the OER was administratively and substantively inaccurate and that it did not accurately reflect his performance or potential.  He claimed the Rater and SR did not comply with Army Regulation 623-105; that the rating chain was never properly drawn up with correct effective dates; and that his SR was changed at the last minute and, therefore, had no knowledge of his performance or potential.

15.  The OSRB received the applicant's appeal on 5 December 2005 and contacted the SR and the Fort Stewart Garrison Commander at the time of the subject OER.

	a.  The SR stated the applicant worked on his staff and the applicant's office was next to his [SR's] office.  He added he could not recall what things he was working on at the time, but felt he'd given the applicant a fair rating and that he had followed regulatory guidance.

	b.  The then Garrison Commander stated he remembered the applicant; that he had been deployed, but was returned to the United States.  His security clearance had been pulled pending the disposition of UCMJ charges; this made the applicant "unemployable."

16.  The OSRB reviewed all information concerning the subject OER and found no evidence to support deleting or amending it.  The SR's comments were consistent with a "Fully Qualified" block check and a center-of-mass rating.  The report was viewed as lacking superlatives and not fully supporting promotion or schooling.

17.  The applicant states in his 6 June 2006 memorandum to the ABCMR that his rater for the subject OER checked "OUTSTANDING PERFORMANCE, MUST PROMOTE" in Part Va (Performance and Potential).  He adds that, in Part Vb (Comment on Specific Aspects of the Performance), the rater stated he 

[applicant] was "...tasked to assist with planning and coordinating many [emphasis added] high visibility events for the Command Group;" however, he only mentioned two tasks.

18.  The applicant provides a 20 April 2006 memorandum for the Commander, HRC-Alexandria, wherein he appeals the subject OER for a second time.  In that memorandum, he alleges the following administrative errors:  an improper rating chain was used that was not announced until the end of the rating period; and the rating chain failed to provide him with rater and senior rater support forms.  The applicant alleges substantive errors as:  improper evaluation by his senior rater; the senior rater never met with him and only rated him "FULLY QUALIFIED" based upon a pre-judgment of his [applicant's] legal dilemma.

19.  The applicant provides a memorandum of support from the former 3rd Infantry Division Command Sergeant Major (CSM).  The CSM states the applicant languished at Division Headquarters for several months while the Command weighed court-martial charges against him.  The CSM believes the subject OER is a form of reprisal after the applicant was falsely accused and "...subsequently exonerated by a court-martial convening authority."

20.  AR 623-105 establishes the policies and procedures for the OER system.  Paragraphs 3-57 and 6-6 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, 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.  Paragraph 6-10 of that regulation 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.

21.  Department of the Army Pamphlet (DA PAM) 623-3 (Evaluation Reporting System) prescribes the procedures for completing evaluation reports.  It states the rater, in Part Vb, makes mandatory comments on specific aspects of performance.  As a minimum, the comments should address the key items mentioned in the duty description portion of the OER(Part IIIc) and, as appropriate, the duty description, objectives, and contributions portions of the rated officer's OER support form.


22.  AR 380-67 (Personnel Security Program) establishes personnel security policies and procedures.  It provides, in pertinent part, the commander or head of an organization shall determine, based upon receipt of derogatory information, whether it is in the interests of national security to continue a Soldier's security status unchanged or to take interim action to suspend the Soldier's access to classified information or assignment to sensitive duties.  Examples of such derogatory information include:  disregard of public law, statutes, Executive orders, or regulations, including violation of security regulations or practices; criminal or dishonest conduct; acts of omission or commission that indicate poor judgment, unreliability or untrustworthiness; and acts of sexual misconduct or perversion indicative of moral turpitude, poor judgment, or lack of regard for the laws of society.

DISCUSSION AND CONCLUSIONS:

1.  On 31 January 2003, the applicant, then in Kuwait for the run-up to Operation Iraqi Freedom, was offered nonjudicial punishment (NJP) under Article 15, UCMJ, for violating a lawful general regulation and for making a false official statement.  The applicant's rights were explained to him and he was afforded the opportunity to seek legal counsel.  After consulting with legal counsel, the applicant, on 8 February 2003, declined his right to a trial by court-martial and requested a closed Article 15 hearing.  On 8 February 2003, the commander found the applicant guilty of the charges after a hearing with the applicant; he also decided to impose punishment and directed the applicant be issued a punitive letter of reprimand (PLOR).  On that same date, the applicant received a PLOR.  The applicant was then removed from his position as Division G-5 and transferred back to the United States and Fort Stewart.  He did not receive an OER upon his reassignment.

2.  Upon his return to Fort Stewart in February 2003, the applicant was assigned duties as a Special Projects Officer in the Office of The Chief of Staff, 3rd Infantry Division, while the Command contemplated preferring court-martial charges against him.  During this time, the Command initiated action to suspend his security clearance, thereby limiting his usefulness as an action officer.

3.  Because of the unique circumstances of his reassignment and the extreme turbulence of the 3rd Infantry Division's deployment for Operation Iraqi Freedom, the applicant's rating chain at Fort Stewart from February 2003 through the start date of the subject OER was not in accordance with AR 623-105.  However, the rating chain was modified for the subject OER with the applicant's knowledge and acquiescence.

4.  The applicant received the subject OER during the period he was awaiting disposition of the court-martial charges preferred against him.  The rater's narrative description of the applicant's performance was bland.  The rater used terms such as "assisted" and "contributed" to describe the applicant's various accomplishments, suggesting that he was a peripheral, supporting player, at best.  He specifically mentioned the applicant's help in hosting the 3rd Infantry Division Association reunion and visits by the Army Audit Agency and general Accounting Office.  Although the applicant believes the rater should have commented on more of his accomplishments, there is no regulatory requirement as to how many accomplishments may be discussed; the rater followed the regulation in his narrative.

5.  The SR checked that the applicant was "FULLY QUALIFIED" for promotion and gave him a COM rating for potential.  His narrative comments were less than glowing, stating the applicant "met the standard, [and] demonstrated...skills."  He added the applicant should be "consider[ed] for promotion and advanced schooling."  All officers are "considered" for promotion and schooling; this is far from a glowing recommendation.  There is no evidence the SR's opinion of the applicant was shaped by anything other than his performance.

6.  The Command ultimately went forward and court-martial charges were preferred against the applicant.  On 28 January 2004, applicant's defense counsel filed a Motion to Dismiss for Selective Prosecution with the United States Army 2nd Judicial Circuit.  The motion sought to dismiss "Charges IV and V and their specifications."  These charges were identified as the same two charges for which the applicant accepted punishment under Article 15, UCMJ, while in Kuwait.  On 26 March 2004, the Commanding General, 3rd Infantry Division, withdrew all charges and dismissed them.  This was not exoneration from the charges, merely a dismissal without prejudice.

7.  If the applicant's duty at Fort Stewart during the period of the subject OER was limited or restricted because of a suspension of his security clearance, that suspension was completely justified based on the applicant's situation and pertinent Army regulations.

8.  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.  That is, the applicant must produce evidence that clearly and convincingly shows that the subject OER lacks regularity.  The applicant has failed to submit evidence that would satisfy this requirement.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __jtm___  __rsv___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060005995
SUFFIX

RECON

DATE BOARDED
20070322
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
111.0100
2.

3.

4.

5.

6.