IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080006090 


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, in effect, removal of an officer evaluation report (OER) for the period 1 July 2005 to 18 November 2005 from his official military personnel file (OMPF).  He also requests, in effect, reinstatement on active duty and promotion reconsideration to major by a special selection board (SSB).

2.  The applicant states, in effect, that he was not selected for promotion to major based on this OER, a "Do Not Promote" OER.  He also states that this one OER outweighed the other six outstanding OERs that are in his OMPF, thus causing him to be passed over for promotion.  He further states that he was not relieved from command, he simply received a "Do Not Promote" OER.  This OER is grossly inaccurate with respect to his promotion potential for future promotion.  He had no less than six OERs that will counter any assertion to his potential for promotion.  Four of those six OERs were received prior to the OER in dispute, with two of those OERs coming from the same chain of command which gave him the "Do Not Promote" OER.  The remaining two OERs were received after the "Do Not Promote" OER. 

3.  The applicant further states, in effect, that he was considered twice for promotion to major in 2005 and 2006 and he did not have an opportunity to receive an OER for that time period.  He was only one OER removed from the "Do No Promote" OER dated 18 November 2005.  He did not have an opportunity to receive another OER because he was in a TDY (temporary duty) status.  He also states, in effect, that because he did not have an opportunity to have another OER in front of the board he was not selected for promotion to major.  He further states, in effect, that his last two OERs say the same thing, he should be promoted.  

4.  In support of his application, the applicant provides copies of his OER for the period 19 November 2006 to 18 November 2007; a self-authored addendum in which he attempts to clarify how he became a two-time non-select for major; a Memorandum For Record which appears to have been included among his documents in error; electronic mail correspondence between himself and a staff member of the Army Human Resources Command, Alexandria, Virginia; and an article titled, "More Convicted Felons Allowed to Enlist in Army, Marines."

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the United States Army Reserve (USAR), as a second lieutenant, effective 10 May 1997, with prior Reserve enlisted service.  He was ordered to and entered active duty on 24 September 1997.  He was promoted to captain effective 31 March 2001.

2.  A Memorandum For Record, dated 20 August 2005, shows the applicant was advised by his commander that he was temporarily suspending the applicant from command duties while an Army Regulation 15-6 Investigation was being conducted into allegations that he drove his government vehicle to his living quarters and back to work, that he drove a privately owned vehicle (POV) while the owner was TDY to Afghanistan, and that he provided a false statement to the Battalion Commander, on 17 August 2005, when asked about the use of his government vehicle.

3.  The applicant was issued an OER for the period 1 July 2005 to 18 November 2005, a permanent change of station (PCS) report.  

4.  In Part IV (Performance Evaluation-Professionalism [Rater]), the rater checked the block "no" under Items 1, 2, and 5 (Honor), (Integrity), and (Respect), respectively.  

5.  In Part V (Performance and Potential Evaluation), the rater placed the applicant in the "Unsatisfactory Performance/Do Not Promote" block.  The rater stated that an Army Regulation 15-6 Investigation established that the applicant did utilize a government vehicle for personal use, the applicant, without proper authority, drove an unauthorized POV; and knowingly made a false statement to his Battalion Command when he was questioned about the use of the government vehicle.  The rater entered the comment, "While the applicant is competent as an Army officer, he has demonstrated extremely poor judgment and a disturbing lack of candor and integrity when dealing with his superiors.  I do not recommend him for promotion to major or selective continuation of service."

6.  In Part VII (Senior Rater), his senior rater marked the block, "Do Not Promote."  In Part VIIc (Comment on Performance/Potential), the senior rater entered the comment, the applicant "is an intelligent and fit officer.  However, he lacks the judgment and integrity required and expected of an officer in today's Army.  He has violated Army Regulations and knowingly made false statement to his Battalion Commander.  I do not recommend the applicant for promotion or selective continuation of service.  His potential for future service to the Army is very limited."  

7.  In his rebuttal to the OER, dated 6 December 2005, the applicant stated that he believed the rating was incorrect and did not provide an accurate and fair assessment of his performance and potential for future service.  Since he had never denied the allegations lodged against him, the Army Regulation 15-16 Investigation only confirmed what was already known.  He stated, in effect, that he had always accepted responsibility for driving the vehicle and when advised not to drive, he stopped driving.  

8.  The applicant also stated, in effect, the POV belonged to Mr. ______, who was TDY and asked him to take care of his vehicle.  Without realizing he needed a special driver's license, he did drive Mr. _____'s POV.  Yet, his Battalion Commander asserted that he drove the POV without authority.  However, he sought and received the Battalion Commander's permission before driving the POV until 29 July 2005, when the commander told him not to drive the vehicle anymore.  He made a terrible error in judgment, which led to him responding to the commander's question with an untrue statement.  He knew he should have had faith in his leader and provided the correct answer and faced the consequences of his actions.  The decision was a poor one and he never wanted to tell anything but the truth.  His answer on that day was not the results of a flaw in his character or his commitment to serve his country.  He knows he made a mistake.  The applicant asked that his previous performance evaluations and the commitment that he had made to serve his country be considered.

9.  The OER was given to the applicant as a referred report on 18 January 2006.

10.  The applicant OERs for the periods 19 November 2005 to 18 November 2006 and from 19 November 2006 to 18 November 2007 show he was rated "Best Qualified."

11.  On 30 October 2007, the applicant appealed the contested OER with DA Officer Special Review Board (OSRB).  
12.  On 28 November 2007, the OSRB determined that there was no evidence to support the applicant's contention and found no justification to support promotion reconsideration.  The board concluded that there was sufficiently clear and convincing evidence found in the case to maintain the presumption of regularity and retain the OER as previously amended.  The applicant's appeal was denied and it was directed the appeal documentation be file in the restricted portion of the applicant's OMPF.

13.  The applicant was released from active duty effective 1 April 2008, for non-selection for permanent promotion.  He was reverted back to the USAR and assigned to a unit.

14.  The applicant submits a Memorandum For Record, dated 2 April 2008, pertaining to another officer's capabilities of being a member of the Motor Transportation Regiment.  He also submits electronic mail correspondence pertaining to return of his OSRB appeal package to replace it with a revised one and the article pertaining to current Army recruiting practices.

15.  Army Regulation 623-105, establishes the policies and procedures for the OER system.  It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports.  It provides that an OER accepted by Headquarters, Department of the Army (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.  Paragraph 9-7 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.

16.  The regulation defines a referred report, among other things, as 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.  It specifies that such a report will be referred to the rated officer by the senior rater for acknowledgment and comment before it is sent to HQDA.

17.  The regulation also provides for requesting a Commander’s Inquiry in cases when a report may be illegal, unjust, or otherwise in violation of the regulation.  Commanders are required to look into the matter and may then conduct an official inquiry into the matters.  The regulation provides that “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 injustice after the OER is accepted at HQDA.”  It also provides that “The results of the commander’s inquiry that are forwarded to HQDA will include findings, conclusions and recommendations in a format that could be filed with the OER in the officer’s OMPF for clarification purposes.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to removal of the OER for the period 1 July 2005 to 18 November 2005, reinstatement on active duty, and promotion reconsideration to major by a special selection board.

2.  The applicant has not shown that the contested report contains any serious administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  The contested report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.

3.  The applicant has submitted strong argument in support of his request; however, he has not shown the OER to be invalid.  The applicant’s appeal of the OER to the OSRB was denied based on insufficient evidence to show the report was in error or unjust, and based on the presumption of regularity that the report represented the considered opinion and objective judgment of the rating officials at the time of its preparation.  The applicant failed at the time to request a Commander’s Inquiry.  This is an individual’s available right and option concerning OER’s perceived to be unfair or unjust, and could have made a difference based on the freshness of the rating with all involved in place, to provide a concurrent investigation prior to the finalization of the report.  The applicant has not overcome his burden of proof to show error, injustice, or inequity.

4.  In view of the foregoing, there is no basis for granting the applicant’s request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  ___x___  ___x____  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.




      _______ _  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.

ABCMR Record of Proceedings (cont)                                         AR20080006090



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ABCMR Record of Proceedings (cont)                                         AR20080006090


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