IN THE CASE OF:     

	BOARD DATE:	        24 July 2008

	DOCKET NUMBER:  AR20080007452 


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 removal of an Officer Evaluation Report (OER) for the period 20031201 to 20030806 from his records due to improper procedures.  

2.  The applicant states that:

	a.  the Rater failed to counsel him;

	b.  the OER is based on events that did not occur; 

	c.  the findings of the investigating officer (IO) are not what the IO told the applicant and that the IO report was altered to ensure a negative evaluation; and 

	d.  he was relieved without a notification memorandum from the first general officer in the chain of command and that proper procedure was not followed due to the unit’s redeployment from theater.

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 5 February 2004. 

	b.  Copy of Recommendation for Award of the Valorous Unit Award, dated 3 November 2005, and Citation, dated 28 October 2005, showing award of the Valorous Unit Award.
	c.  Letter of Recommendation, dated 15 December 2003. 

	d.  Release from Active Duty Orders 034-1244, dated 3 February 2004.  

	e.  Statement, dated 28 August 2004, in support of the applicant’s appeal. 

	f.  Copy of the applicant’s appeal, dated 25 September 2006. 

4.  On 30 June 2008, the applicant submitted the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 14 may 1993.

	b.  Oath of Office, dated 1 July 2001.

	c.  Assignment Orders 213-006, dated 1 August 2001.

	d.  National Guard Bureau (NGB) Form 62-E (Application for Federal Recognition as an Army National Guard Officer), dated 1 April 2001. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  With prior enlisted service in the U.S. Navy (USN) and the U.S. Army Reserve (USAR), the applicant's records show he was appointed as a second lieutenant (2LT) in the New York Army National Guard (NYARNG) and executed an oath of office on 1 July 2001.  He was subsequently assigned to the 145th Maintenance Company, 53rd Troop Command, NYARNG, Bronx, New York.   


3.  On 7 February 2003, the applicant was ordered to active duty as a member of his Reserve unit for a period of 365 days, in support of Operation Iraqi Freedom (OIF).  He was subsequently assigned to the 812th Military Police Company and served in Kuwait/Iraq from 16 April 2003 to 22 November 2003.  He was honorably released from active duty on 5 February 2004 and reverted back to his ARNG status.

4.  On 9 November 2003, the applicant was issued a relief for cause OER for the period “20030201 to 20030806.”  In Part IVa (Army Values) of the DA Form 67-9 (Officer Evaluation Report), he received a "NO" for honor, respect, selfless service, and duty.  In Part V (Performance and Potential Evaluation), the Rater placed an "X" in the "Unsatisfactory Performance" block and noted:

"the applicant’s performance caused him to be relieved for cause from his position.  On or around 20 June 2003, [Applicant] disobeyed my direct order, disrespected me on the FM net radio, and engaged in conduct unbecoming an officer by telling his platoon members and I that he “Quit” and abandoned his position as Platoon Leader, thereby becoming derelict in his duties as an officer.  Additionally, [Applicant] threw a loaded pistol, which showed poor judgment, and could have resulted in the death or serious injury of a Soldier.  After a rehabilitative transfer to another platoon, on or around 15 July 2003, [Applicant] accosted his 3rd squad leader by jabbing the aforementioned individual with his hand, and waving his pistol at him in a threatening manner.  On or around 16 July 2003, [Applicant] became so irate when speaking to his 1st squad leader, that after berating him, he picked up a broom and tossed it across the room.  On or around 17 July 2003, [Applicant] disobeyed another order and disrespected me again while at a meeting, in that he stormed away from me while I was talking to him, threw his notebook and pen on the ground at my feet while I was speaking to him, and showered me with obscenities in front of platoon members.  This officer has no further potential for service in the Army and should not be retained due to his inability to control his temper.”

5.  In Part VIIa, the Senior Rater (SR) marked, in pertinent part, "DO NOT PROMOTE" and entered the following comments:




"Throughout this rating period, [Applicant] has shown inability for self control.  Because of his repeated actions, I relieved him from his position as platoon leader.  His disrespect to the company commander brought dishonor to himself and showed a complete lack of discipline and military bearing.  His action of threatening his squad leaders on three separate occasions to three separate squad leaders in two separate platoons illustrates a leadership climate which does not promote Army values.  [Applicant] has a great deal of potential, but chose to squander it.  Do not promote.  Do not retain.”

6.  On 27 September 2004, by memorandum, the Officer Evaluation Team at the U.S. Army Human Resources Command (HRC), St. Louis, Missouri (MO), notified the applicant’s commander that the OER contained administrative errors (Referral enclosure, Height/Weight entry of Yes or No, and Supplementary Review).  Furthermore, the memorandum notified the applicant’s commander to re-refer the report to the applicant after the corrections were made.   

7.  On 1 December 2004, by memorandum, HRC-St. Louis, MO notified the applicant that a review of all outstanding Relief for Cause OERs resulted in his evaluation report for the period 20030201 to 20030806 still outstanding.  This report was a referred report in accordance with paragraph 3-32 of Army Regulation 623-105 (Officer Evaluation Reporting System).  By regulation, the report must be re-referred to the applicant for comment.  The memorandum further informed the applicant that his suspense date was 29 December 2004 and that failure to respond within the suspense would result in a copy of this memorandum being placed in his official file indicating that he failed to respond.  However, there is no indication in the applicant’s records that he responded.

8.  On 27 January 2005, by memorandum, HRC-St. Louis, MO notified the applicant again that a review of all outstanding Relief for Cause OERs resulted in his evaluation report for the period 20030201 to 20030806 still outstanding.  However, there is no indication that the applicant responded to this notification.  Accordingly, on 7 February 2005, and entry was made stating that “the applicant failed to respond to the DA Directed Relief for Cause Evaluation Report."

9.  On 25 September 2006, the applicant appealed his OER to the Officer Special Review Board (OSRB), HRC-St. Louis, MO.  The basis for his appeal was substantive inaccuracy.  He provided repetitious general statements that the entire performance was a summation of allegations within a three-day period and did not detail any evidence of his performance; that the Rater did not conduct an initial counseling; although one incident occurred, the evaluation remained unfair 
and impartial and procedures for a relief for cause were not in accordance with Army Regulation 623-3; that the Rater thought he was disobedient and disrespectful during the rating period when his orders came from the battalion-level commander of the unit his platoon provided direct support; that the SR was changed and the new SR did not have 60 days in command and the appellant was not in his rating scheme and did not follow proper procedures; that he was relieved without a notification memorandum from the first general officer in the chain of command; and that the OER contained unproven derogatory information in violation of Army Regulation 623-3 (Evaluation Reporting System).

10.  In support of his appeal, he provided a statement by a former sergeant first class (SFC), who had since been promoted to First Sergeant (1SG).  The 1SG stated that the applicant was a very energetic individual and that he was relieved because he was doing the right thing for his platoon during their deployment in Iraq.  Additionally, the 1SG stated that the OER is not an accurate reflection of the applicant and that in his judgment the applicant received an unfair evaluation. 

11.  On 22 February 2007, by letter, HRC-St. Louis, MO notified the applicant that he was considered for promotion to captain (CPT) by the 2006 DA Reserve Components Mandatory Selection Board that convened on 7 November 2006, but was not selected.  

12.  On 15 February 2008, the OSRB addressed the applicant's appeal for removal of his OER.  He was notified that by majority vote of the OSRB, his appeal was denied, except for some minor administrative corrections.  He was also notified that the contested report will be removed and a modified report would be filed in the performance section of his OMPF.  

13.  On 27 May 2008, HRC-St. Louis, MO published Orders C-05-810053, re-attaching the applicant to the Puerto Rico Army National Guard (PRARNG) for the purpose of separation processing.

14.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, establishes the policies and procedures for the OER system.  Paragraphs 3-57 and 6-6a 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.

15.  Paragraph 3-19 of Army Regulation 623-105 states, in pertinent part, that Army values and the dimensions of the Army's leadership define professionalism for the Army officer.  Specifically, it states that Army values apply across all grades, positions, branches and specialties and that they are needed to maintain public trust and confidence and the qualities of leadership and management needed to maintain an effective officer corps.

16.  Paragraph 3-20 of Army Regulation 623-105 states, in pertinent part, that Part V of the form provides for the rater's evaluation of the rated officer's performance and potential.  The rater comments on specific aspects of performance and potential.  These comments are mandatory.  As a minimum, the comments should address the key items mentioned in the duty description In Part II and, as appropriate, the duty description, objectives and contributions portions of the OER support form.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to removal of the contested OER was thoroughly considered; however, there is no evidence in the available records and the applicant did not provide sufficient evidence which shows the contested report did not accurately reflect the Rater's and/or Senior Rater's  considered opinion and objective judgment of the applicant's performance and potential at the time the contested report was rendered or that the rating officials lacked the fairness, honesty, and impartiality required by governing regulation.

2.  With respect to the applicant’s arguments:

	a.  he contended that the Rater did not conduct an initial counseling.  Army Regulation 623-105, in effect at the time, indicates that failure to comply with any or all of the junior officer development counseling or documentation processes is not grounds to remove an OER.  Furthermore, the periodic meetings and after action reviews (AAR) conducted within the applicant’s battalion and/or brigade in the theater of operation, could easily be construed as a form of counseling or feedback, despite not being documented because of the combat conditions; 

	b.  he contended that the OER is based on events that did not occur; yet, in his appeal, he admits that at times his commander could have interpreted his actions as disrespect.  Furthermore, the Rater documented several instances of 
indiscipline, some in the presence of several platoon/squad members.  The applicant failed to obtain statements from those members that show otherwise. Moreover, the regulation does not require a rated officer’s performance to be detailed but a fair and honest evaluation given.  The Rater narrative discussed events covering a much broader period, and explained the adverse conduct by the appellant during that time; 

	c.  he contended that the findings of the investigating officer (IO) are not what the IO told the applicant and that the IO report was changed to ensure a negative evaluation; however, the applicant’s record is void of the IO's findings and the applicant neither provided those findings nor submitted any evidence to substantiate what he alleges as a change to the IO report; and  

	d.  he contended that he was relieved without a notification memorandum from the first general officer in the chain of command and that proper procedure was not followed due to the unit’s redeployment from theater.  However, there is no regulatory requirement for a general officer approval of a relief, except in cases of "Command."   Platoon leader positions are not formal command assignments.

3.  The contested report appears to represent a fair, objective, and valid appraisal of the applicant’s demonstrated performance and potential during the period in question.  His Rater and Senior Rater were in agreement as far as his poor performance and lack of potential.  As such, the rating officials fulfilled their responsibilities in providing a fair and balanced evaluation and noted his failures of character regarding Army values as well as his performance.  

4.  Any OER accepted 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.  This is known as a “presumption of regularity.”  Accordingly, to justify deletion or amendment of the OER, the appellant must produce evidence that clearly and convincingly overcomes the presumption referred to above and that action to correct an apparent material error or inaccuracy is warranted.  The applicant did not provide sufficiently clear and convincing evidence to overcome the presumption of regularity.  Therefore, there is insufficient evidence to grant the applicant relief in this case. 





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


									XXX
	_______________________
      	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)                                         AR20080007452



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ABCMR Record of Proceedings (cont)                                         AR20080007452



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