IN THE CASE OF:	  

		BOARD DATE:	  4 November 2008

		DOCKET NUMBER:  AR20080006543 


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, that his Officer Evaluation Report (OER) 
(DA Form 67-9) covering the period from 28 March 2004 through 27 March 2005 be corrected by showing it is not a referred report.

2.  The applicant states, in effect, that the regulation governing OERs stipulates that no reference will be made to an incomplete investigation concerning a rated officer on his/her OER, and that an OER may only reference actions or investigations which have been processed to completion, adjudicated, and have had final actions taken prior to submission of the OER.  He claims the OER in question ended on 27 March 2005, and that it contained references to an ongoing investigation that had not been finalized and this resulted in his OER unfairly becoming a referred report.  

3.  The applicant provides the following documents in support of his application:  Officer Evaluation Reports (DA Form 67-9); Headquarters, United States (U.S.) Army 6th Recruiting Brigade Memorandum, dated 5 May 2005; Headquarters, U.S. Army Recruiting Command Memorandum, dated 18 April 2005; and Headquarters, U.S. Army 6th Recruiting Brigade Memorandum, dated 
5 April 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he received the annual OER in question on
6 May 2005.  The report covered the period 28 March 2004 through 27 March 2005, and evaluated the applicant as the United States Army Reserve (USAR) Operations Officer for the United States Army 6th Recruiting Brigade, North Las Vegas, Nevada.  In Part IVa (Army Values) the rater, a lieutenant colonel, checked the "No" block in response to questions 1 (Honor) and 2 (Integrity).  In Part IVb (Leader Attributes/Skills/Actions) 3 (Actions (Leadership)), the rater checked the "No" block in response to question 2 (Decision Making).  In Item Part V (Performance and Potential Evaluation), the rater placed the applicant in the "Satisfactory Performance-Promote" block.  

2.  In Part Vb (Comments) of the contested report, the rater provided comments supporting his ratings.  His comments were in large part highly favorable and cited the applicant’s achievements; however, the rater did indicate that the applicant’s accomplishments were overshadowed by the fact that during this rating period he used poor judgment by engaging in an inappropriate e-mail relationship with a married co-worker.  The rater also stated that the applicant’s personal moral standards and adherence to the Army's code of values were seriously called into question because he also violated a direct order from his senior rater not to have any social contact with the married co-worker during a pending investigation.  The rater finally remarked that the applicant’s lack of judgment in these matters made his potential as a Field Grade Officer limited due to his inability to appreciate the consequences of his actions.

3.  In Part VII (Senior Rater) the senior rater, a colonel, placed the applicant in the "Fully Qualified" block in Part VIIa (Evaluate the Rated Officer's Promotion Potential).  In Part VIIc (Comments on Performance/Potential), the senior rater’s comments in large part were very favorable; however, he did comment that while the applicant’s duty performance was marked by success, his personal conduct displayed a lack of professionalism based on his exchange of written correspondence with a married co-worker which is not in keeping within the standards expected of a field grade officer.  He also stated that after being directed not to have any contact, including e-mail contact, with this married coworker while there was an ongoing investigation, the applicant continued to have contact.  He further stated that while this matter is minor in nature, the applicant's conduct displayed a lack of judgment expected of a field grade officer. 

4.  On 5 May 2005, the applicant submitted a letter of rebuttal for the referred OER.  In his rebuttal, he stated that the “No” responses in Part IV were all based on information contained in an ongoing investigation, and should have in fact been “Yes” responses.  He also claimed that the "Satisfactory Performance, Promote" block evaluation in Part V was also based on input from an ongoing investigation and should have been an "Outstanding Performance, Must Promote" block evaluation.  He further states that the "Fully Qualified" block evaluation in Part VII, which resulted in a Center of Mass (COM) evaluation, was also based on input from a pending investigation and that he instead should have received a "Best Qualified" block evaluation and an Above Center of Mass (ACOM) report based on his performance.  He concluded his statement by indicating that the evaluations, because they were based on an ongoing investigation, were inappropriate and should not have been included on the OER. 

5.  On 8 August 2008, an advisory opinion was received from the President, Army Special Review Boards (OSRB).  This official indicated that the applicant’s request and the OER in question were reviewed by the OSRB.  The OSRB found the applicant failed to provide sufficient evidence to support a finding that his misconduct, poor judgment, lack of professional officer standards, and violation of a direct order did not occur within the rating period.  The OSRB concluded that the applicant's evidence does not support his claim of the final actions and dates for the investigations; however, the evidence does confirm a local reprimand was imposed on the applicant on 14 March 2005, which was during the rating period on the contested report.  

6.  The advisory opinion further indicates that the OSRB also concluded that the governing regulation does not preclude the rating chain's use of verified derogatory information and that an investigation is not required to verify derogatory or unfavorable information.  However, it does state, in pertinent part, that while an officer is under investigation, it may not be mentioned in an OER until the investigation is completed.  The OSRB found both rating officials' narrative comments referred to a pending investigation, and that it would be appropriate to remove these references, which would satisfy the intent of the regulation.  The OSRB stated this is an administrative change and does not support a change to the referred status of the report.  

7.  On 11 August 2008, the applicant was provided a copy of the advisory opinion in order to have the opportunity to respond to its contents.  To date, the applicant has failed to reply.  

8.  Army Regulation 623-105, in effect at the time, prescribed the policies and procedures pertaining to the Officer Evaluation System (OES) and Officer Evaluation Reporting System (OERS).  It also provided guidance regarding redress programs including commander inquiries and appeals.  Paragraph 3-27d of the OER regulation stated, in pertinent part, that any verified derogatory information may be entered on the OER whether the officer is under investigation, flagged or awaiting trial.  However, the fact that the officer is under investigation or trial may not be mentioned on the OER until the investigation or trial is completed, this does not preclude the rating chain's use of verified derogatory information.  

9.  Paragraph 3-57 of the same regulation provided the basic rule applicable to modifications of previously submitted reports.  It stated, in pertinent part, that an evaluation report accepted by Headquarters, Department of the Army (HQDA) 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, to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also stated that requests that a report that has been accepted for filing in an officer’s record be altered, withdrawn, or replaced with another report will not be honored.

10.  Chapter 6 of the OER regulation in effect at the time contained the policies and procedures pertaining to managing the OER redress program.  Section III contained guidance on OER appeals.  Paragraph 6-7b (Timeliness) stated, in pertinent part, that substantive appeals must be submitted within 3 years of the OER's completion date.  

11.  Paragraph 6-10 of the same regulation outlined the burden of proof that must be met to support a successful OER appeal.  It stated that the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 3-57 should not be applied to the report under consideration 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, not merely proof of the possibility of administrative error or factual inaccuracy. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his OER ending on 27 March 2005, be changed to a "non-referred" report was carefully considered.  However, there is insufficient evidence to support granting the requested relief.  

2.  The governing regulation prohibits the mention of an ongoing investigation in an OER until the investigation is completed.  As a result, it would be appropriate to administratively correct the OER in question to remove the references to an investigation made by the rater and senior rater.

3.  However, the governing OER regulation does not preclude the rating chain's use of verified derogatory information and stipulates that an investigation is not required to verify derogatory or unfavorable information.  In this case, the evidence of record confirms that with the exception of the comments referred to in the preceding paragraph, all other ratings, evaluations, and comments on the contested OER were based on verified misconduct and actions that did not require resolution through an investigation.  Therefore, there is insufficient evidence to support a finding of substantive error and/or to support changing the OER to a non-referred report as requested by the applicant.  

4. 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 and counsel have failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant's Officer Evaluation Report ending date 27 March 2005 by deleting from Part Vb the statement "during a pending investigation" and deleting from Part VIIc the statement "while there was an ongoing investigation".

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his OER to a 
"non-referred" report.



      ________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)                                         AR20080006543



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ABCMR Record of Proceedings (cont)                                         AR20080006543


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