IN THE CASE OF:	  

		BOARD DATE:	        14 MAY 2009

		DOCKET NUMBER:  AR20090000392 


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 complete removal of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period from 6 June 2003 through 30 April 2004 (hereafter referred to as the contested OER) from his records.  

2.  In the alternative the applicant requests that if the entire contested OER cannot be removed that the following specific comments be removed:

	a.  Part IVa(2) (Performance Evaluation-Professionalism-Army Values-Integrity), in effect, change the entry from "No" to "Yes";

	b.  Part IVb(2) (Performance Evaluation-Professionalism-Skills-Conceptual), in effect, change the entry from "No" to "Yes"; 

	c.  Part Va (Performance and Potential Evaluation (Rater)), remove the entry "he failed to exercise proper judgment and conducted an unprofessional relationship with a female officer.  [Applicant’s] actions damaged the morale and climate for Soldiers of this organization"; and

	d.  Part Vb (Comments on Specific Aspects of the Performance and Potential), remove the entry “his poor judgment concerning his professional personal relationship negatively impacted this organization."

3.  Once corrected, the applicant also requests to be re-boarded for lieutenant colonel (LTC) promotion.

4.  The applicant states that the contested OER contains substantive inaccuracies and that it was unjust as evidenced by his evaluations reported throughout his career and that the issues recorded on this OER were of a personal nature that included damaging rumors, misquotes, innuendos, and purely circumstantial evidence initiated by his former spouse.  He further adds that she (his former spouse) placed the leadership in an awkward position which resulted in this referred OER citing that he had negatively impacted the unit’s morale. 

5.  The applicant provides the following additional documentary evidence in support of his request:

	a.  a copy of the contested OER;

	b.  a copy of his Officer Record Brief (ORB), dated 9 December 2008;

	c.  copies of his previous OERs for the periods 19980704-19990606; 19990607-20000606; 20000607-20010606; 20010607-20020606; 20020607-20030606; 20030607-20040430 (contested OER); 20040501-20050430; 20051217-20060728; 20060729-20070419; 20070420-20071201; and 20071202-20080501; and

	d.  a self-authored memorandum, dated 11 November 2008, and 13 letters and/or statements of support as follows: 

		(1)  statement, dated 25 September 2008, by a retired colonel (COL;

		(2)  statement, dated 27 October 2008, by a COL, the Chief of Informatics at Madigan Army Medical Center, Fort Lewis, WA; 

		(3)  statement, dated 21 November 2008, by a retired lieutenant colonel (LTC); 

		(4)  statement, dated 28 October 2008, by a COL, a student at the Industrial College of the Armed Forces (ICAF), National Defense University (NDU), Washington, DC.;

		(5)  statement, dated 29 September 2008, by a LTC, the Chief of Clinical and Technical Support, U.S. Army Health Facility Planning Agency, Falls Church, VA;

		(6)  statement, dated 31 October 2008, by a LTC, a staff officer at the U.S. Army Medical Department Activity (MEDDAC), Fort Drum, NY; 
		(7)  statement, dated 22 October 2008, by a Brigadier General (BG), Chief of the U.S. Army Veterinary Corps, Falls Church, VA;

		(8)  statement, dated 16 November 2008, by a LTC, Commander, 4th Battalion, 2nd Aviation Regiment;

		(9)  statement, dated 19 November 2008, by a COL, Commander, Warrior Transition Brigade, Walter Reed Army Medical Center (ARAMC), Washington, DC.; 

		(10)  statement, dated 11 November 2008, by a command sergeant major (CSM), Warrior Transition Brigade, WRAMC, Washington, DC.;

		(11)  undated statement, by a CSM, U.S. Army Europe Regional Medical Command; 

		(12)  statement, dated 27 October 2008, by a COL, Command Surgeon, U.S. Army Test and Evaluation Command (ATEC), Alexandria, VA; and 

		(13)  statement, dated 20 October 2008, by a LTC, Chief Financial Officer, WRAMC, Washington, DC.  

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, the applicant’s records show he was appointed as a Medical Services (MS) second lieutenant in the U.S. Army Reserve (USAR) with concurrent call to active duty and executed an oath of office on 24 December 1991.  He subsequently entered active duty, completed several military training courses, served in various command and staff positions, and was promoted to captain (CPT) on 1 April 1996 and major (MAJ) on 1 September 2002.
3.  The applicant’s records further show that he was assigned to Headquarters and Headquarters Company, USA MEDDAC, Heidelberg, Germany, as the Chief, Personnel Division, from on or around 15 July 2002 to on or about 30 May 2004, during the period of the contested OER.  

4.  On 19 November 2003, an informal investigation revealed that the applicant was engaged in an inappropriate relationship with another officer from June 2003 to October 2003, including the time he was the Acting Deputy Commander of Administration.  The investigation also revealed that there were multiple instances where the applicant was observed demonstrating questionable or inappropriate behavior by several members of the MEDDAC staff to include inappropriate physical contact and that he was advised by a LTC that there was a perception of an inappropriate behavior amongst the troops and that it was affecting morale; but, he failed to end the relationship or cease this behavior.  A copy of this investigation is not available for review with this case.

5.  On 26 January 2004, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully and dishonorably engaging in an inappropriate relationship with a female officer at various locations including Hanau, Germany, San Antonio, Texas, and Belgium, between on or about 1 June 2003 and on or about 10 October 2003.  His punishment consisted of a forfeiture of $1000.00 pay for 2 months and a written reprimand.  

6.  On 27 January 2004, the applicant received a General Officer Memorandum of Reprimand (GOMOR) for conduct unbecoming of an officer and a gentleman.  The GOMOR stated that his conduct was inexcusable and his actions brought great discredit to himself, the officer corps, and the Army.  His actions further displayed a lack of discipline and raised questions about his ability to effectively perform as a leader.  His reprehensible behavior called into question his values of loyalty and potential for continued service.  The GOMOR concludes that he failed to conduct himself in a professional and responsible manner. 

7.  During the month of April 2004, the applicant received a change of rater OER which covered 10 months of rated time, from 6 June 2003 through 30 April 2003 for the applicant's duties serving as the "Chief, Personnel Division."  His Rater was a LTC and his Senior Rater was a COL.  The OER shows the following entries:

	a.  In Part IVa(2), the Rater placed an "X" in the "No" block for "Integrity"; 

	b.  In Part IVb(2), the Rater placed an "X" in the “No” block for "Conceptual";

	c.  In Part Va, the Rater placed an "X" in the "Satisfactory Performance-Promote" block and in Part Vb, he entered the following comments:

….[h]e failed to exercise proper judgment and conducted an unprofessional relationship with a female officer.  [Applicant’s] actions damaged the morale and climate for Soldiers of this organization. 

	d.  In Part VIIa, the Senior Rater placed an "X" in the "Fully Qualified" block and entered the following comments in VIIe:  

However, his poor judgment concerning his unprofessional personal relationship negatively impacted this organization.  

10.  The contested OER was processed at HRC, Alexandria on 1 May 2004.  However, there is no indication that the applicant appealed this OER within the time frame authorized by Army Regulation 623-105 (Officer Evaluation Reporting System).

11.  On 11 November 2008, the applicant submitted an appeal of the contested OER.  Upon receipt at HRC, Alexandria, the Chief, OER Appeals and Corrections Branch forwarded the OER and supporting evidence to the Officer Special Review Board (OSRB).  The Chief further indicated that the applicant was one-time non-select for promotion to LTC and therefore had a priority 2.

12.  On 5 January 2009, by letter, the OSRB notified the applicant that his appeal was returned without action because it was not submitted within 3 years of the through date of the report.  The OSRB further notified the applicant that a careful review of the issues he provided did not constitute exceptional justification to warrant an exception to process his appeal outside the 3-year through date.  

13.  On 13 January 2009, the applicant submitted a DD Form 149 (Application for Correction of Military Records Under the provisions of Title 10, U.S. Code, section 1552) to the ABCMR.  He provided documents, statements, letters, and memoranda, dated on miscellaneous dates, by various individuals with his DD Form 149 as follows:

14.  In his memorandum, dated 11 November 2008, the applicant gives an overview of his accomplishments before, during, and after the period covered by the contested OER.  He states that he experienced domestic issues with his spouse that caused him to become emotionally disassociated from all those around him and buried himself with work.  He adds that although his marriage was strained, his former spouse refused to end the marriage due to her cultural beliefs.  He further adds that he confided in a female officer who offered encouragement, moral support, and friendship in a strictly platonic relationship.  By then, his former spouse had become enraged, vindictive, and retaliatory.  Since she was a civilian employee working within the same organization and had access to the chain of command, she used damaging rumors, misquotes, innuendos, and purely circumstantial evidence and placed the leadership in an awkward position, which ultimately resulted in the contested OER.  He also provides the following statements in support of his argument: 

	a.  in his statement, dated 25 September 2008, a retired COL states that he served as the G-1 for the European Regional Medical Command from June 2002 to April 2004 and periodically interacted with the applicant.  He describes the applicant as a dedicated and respected officer with superb performance.  He adds that the commander did not want to damage his career, but felt compelled to act upon the circumstantial evidence provided by his former spouse regarding the inappropriate relationship; 

	b.  in his statement, dated 27 October 2008, the Chief of Informatics at Madigan Army Medical Center, Fort Lewis, WA, a COL, states that he served as a Deputy Commander for Clinical Services at MEDDAC from August 2002 to August 2004, and that he observed and interacted with the applicant daily.  He comments positively on the applicant’s dedication, intelligence, support, confidence, and strategic thinking.  He further adds that there were allegations that the applicant engaged in an inappropriate relationship and that he (the COL) is not privy to the details of the allegations or the decisions made by the chain of command.  However, despite the allegations, he (the applicant) continued to serve admirably in subsequent positions of increasing responsibility; 

	c.  in his statement, dated 21 November 2008, a retired LTC and former career manager at HRC-Alexandria, VA, comments on the applicant’s overall outstanding performance which was consistently characterized by excellence.  The retired career manager believes that the extent with which the application’s actions negatively impacted his command was far overstated by his leadership; 

	d.  in his statement, dated 28 October 2008, a COL and current student at ICAF-NDU states that he served as the Chief of Quality Management Division during the same period and interacted with the applicant daily.  He feels that the morale within the unit did not waiver and that the unit thrived and surpassed numerous inspections and evaluations.  He also believes that the contested OER was inaccurate when it stated that the applicant negatively impacted unit climate and morale;


	e.  in her statement, dated 29 September 2008, a LTC, Chief of Clinical and Technical Support, U.S. Army Health Facility Planning Agency, Falls Church, VA, supports the applicant’s appeal of the contested OER.  She states that she served as the Chief of Ambulatory Care during the period and worked closely with the applicant.  She also states that she reviewed the contested OER and believes that contrary to the statement that accused him of impacting unit morale and organizational climate, the applicant’s contributions and impact to the organization were those of someone who exercised professionalism, loyalty, and dedication in complete support of the leadership and Soldiers.  He (the applicant) was unfortunately targeted by a single individual whose actions resulted in the adverse OER;

	f.  in his statement, dated 31 October 2008, a LTC, a Fort Drum, NY, MEDDAC staff officer, states that he served with the applicant during deployment and can attest to his honesty, dedication, and loyalty.  He is highly respected within the medical command community and his work ethics and dedication to the mission did not reflect an individual who received adverse evaluation during his previous assignment; 

	g.  in his statement, dated 22 October 2008, a BG, the Chief of Veterinary Corps, states that he discussed the contested OER with the applicant and fears that this single OER could prevent a gifted officer from being promoted.  He has had a stellar record of superb performance and the contested OER is neither commensurate with his previous evaluations nor reflective of his strong sense of duty, integrity, and leadership; 

	h.  in his statement, dated 16 November 2008, a LTC, an aviation battalion commander, states that he served as the applicant’s executive officer at the Warrior Transition Brigade, and can personally vouch for his professionalism, dedication to duty, and drive to achieve excellence.  He adds that it was his personal attributes and exemplary record that led the Army to hand-select him to be the sole medical officer in the Army’s first Warrior Transition Brigade’s primary staff.  Approving his OER appeal proves that the Army does not have a "zero tolerance" policy in its consideration for advancing well-qualified leaders for increased responsibility; 

	i.  in his statement, dated 19 November 2008, a COL, commander of the Warrior Transition Brigade, states that he recommends a favorable resolution of the applicant’s OER appeal and immediate selection for promotion to LTC.  He adds that he discussed the referred OER with the applicant and feels that a thorough investigation of the incident would clear him of any wrong-doing.  During a difficult time in his marriage, he sought counsel of a co-worker; but, he did not have an adulterous physical relationship with her.  The referred OER inappropriately maligns his character, judgment, and integrity.  This inaccurate and biased report must be removed from his record; 

	j.  in his statement, dated 11 November 2008, a CSM and senior enlisted advisor (SEA) to the first Warrior Transition Brigade, states that the applicant is absolutely one of the finest officers he has ever served with in 25 years of service.  He refers to him as instrumental in paving the way on a number of programs that benefit the Soldiers.  He also adds that when knowledge of his non-selection for promotion to LTC became public, the applicant continued to work relentlessly.  He exemplifies the Army values and the Warriors ethos; 

	k.  in an undated statement, by a CSM, a former SEA to U.S. Army Europe Regional Medical Command during the applicant’s tenure, states that he could not have asked for a better personnel officer within the command than the applicant, as he understood the importance of his operations and the impact on a unit success.  The CSM adds that the applicant’s marriage became strained and his former spouse made allegations that placed the applicant’s career and reputation in question.  However, the applicant was already a well-established and a respected member of the community and such allegations did not affect the command climate and its morale remained coin a rushed decision, he received an inaccurate evaluation report.  Yet, he continued to display true professionalism; 

	m.  in a statement, dated 27 October 2008, a COL, the ATEC Command Surgeon, states that he served as the MEDDAC Commander during the period in question and interacted with the applicant daily.  He was also his Senior Rater on the contested report.  He adds that the applicant is one of the finest officers he has known and describes him as a conscientious, dutiful, trustworthy, and hard-working individual.  He should have been promoted to LTC; and 

	n.  in a statement, dated 20 October 2008, a LTC, Chief Financial Officer at WRAMC, states that he worked with the applicant in the late 1990s in medical recruiting and that he had never met another officer with the applicant’s integrity, honesty, and sense of loyalty to the mission.  He always spoke the truth, which was typical of the level of morality and integrity that he consistently displayed.  A scan of his accomplishments over his entire career suggests that he is truly a "below the zone" officer.  He must be promoted and retained. 

14.  Army Regulation 623-105, in effect at the time, prescribed the officer evaluation function of the military personnel system and provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System (OES) and Officer Evaluation Reporting System (OERS).  It also provided guidance regarding redress programs including commander inquiries and appeals. 

15.  Paragraph 3-57 of Army Regulation 623-105 provides the basic rule applicable to modifications of previously submitted reports.  It states, 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 states 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.  Exceptions are only authorized when information that was unknown or unverified when the report was prepared is brought to light or verified; and the information is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared.

16.  Chapter 6 contains the policies and procedures pertaining to managing the OER redress program.  Section III contains guidance on OER appeals and paragraph 6-10 outlines the burden of proof that must be met to support a successful OER appeal.  Paragraph 6-6 states, in pertinent part, that an evaluation report accepted by DA and included in the official record of an officer is presumed to be administratively correct; have been prepared by the properly designated rating officials; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. 

17.  The OER regulation further stipulates that statements from rating officials are also acceptable to support an appeal if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practical, such statements should include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  

18.  Paragraph 6-10 contains guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It states, in effect, 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 6-6 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. 

19.  Army Regulation 623-105 provides for a commander’s inquiry in cases where it is brought to the attention of a commander that an officer evaluation report (OER) rendered by a subordinate or a member of a subordinate command may be illegal, unjust or otherwise in violation of this regulation.  The primary purpose of a 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 of a commander’s inquiry is to obtain command involvement in clarifying errors or injustices after the OER is accepted at HQDA.  The commander involved will inquire into the matters alleged, but must confine his or her inquiry to matters relating to the clarity of the OER, the facts contained in the OER, the compliance of the OER with the governing regulation, and the conduct of the rated officer and members of the rating chain.  The commander does not have authority to direct that an OER evaluation be changed, and the commander may not use command influence to alter the honest evaluation of an officer by a rating official. 

20.  Army Regulation 600-8-29 (Officer Promotions) provides the Army’s policies and procedures on officer promotions.  Chapter 7 provides guidance on Special Selection Boards (SSBs).  SSBs are convened to consider or reconsider commissioned or warrant officers for promotion when DA discovers that the officer was not considered by a regularly scheduled board because of administrative error; the board that considered an officer acted contrary to law or made a material error; or the board that considered the officer did not have before it some material information.  

21.  Paragraph 7-3 of the promotions regulation provides guidance on cases that will not be considered by a SSB.  It states, in pertinent part, that a SSB will not be authorized when it is determined that the officer, in exercising reasonable diligence, could have discovered and corrected the error in the ORB or OMPF.  The regulation stipulates that it is the officer's responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the contested OER should be removed or alternatively, the adverse information should be redacted and/or corrected.

2.  The evidence of record shows that subsequent to an informal investigation on 19 November 2003, the applicant was determined to have been engaged in an inappropriate relationship with another officer from June 2003 to October 2003.  The investigation revealed that there were multiple instances where he was observed demonstrating questionable or inappropriate behavior by several members of the MEDDAC staff to include inappropriate physical contact.  He was advised that there was a perception of an inappropriate behavior amongst the troops and that it was affecting morale; but, according to the findings, he failed to end the relationship or cease this behavior. 

3.  On 26 January 2004, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for wrongfully and dishonorably engaging in an inappropriate relationship with a female officer at various locations.  This was followed by a GOMOR on 27 January 2004, for conduct unbecoming of an officer and a gentleman.  The GOMOR stated that his conduct was inexcusable and his actions brought great discredit to himself, the officer corps, and the Army; his actions displayed a lack of discipline and raised questions about his ability to effectively perform as a leader; his reprehensible behavior called into question his values of loyalty and potential for continued service; and that he failed to conduct himself in a professional and responsible manner. 

4.  In April 2004, the rating officials rendered a change of rater evaluation report on the applicant.  In any case, there is no evidence, and the applicant has provided none to show that his rater and Senior Rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  Although, the applicant provided several letters of support from co-workers, senior officers and/or noncommissioned officers, and observers with his OER appeal, the authors did not provide compelling evidence to overcome the presumption of regularity with regard to the evaluation of the applicant by his rating officials.

5.  By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied 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.  The applicant’s arguments and statements of support he provided in this case address his overall performance and the impact the contested report will have on his future, but fail to show any material error, inaccuracy, or injustice related to the report at the time it was rendered.  

6.  Based on the applicable regulations, the contested OER is correct as constituted and the applicant has failed to meet the burden of proof to justify removing or redacting the contested OER.  Therefore, there is no basis for removing or redacting of the contested OER.



7.  With respect to the applicant’s request to re-board his promotion file, this can be accomplished through the SSB process.  However, the applicant’s OER became a matter of record on 1 May 2004.  There is no evidence that the applicant appealed that OER within the time frame prescribed by governing regulation.  Furthermore, there is no evidence that the applicant’s file contained a material error that led to his non-selection for promotion to LTC.  Therefore, there is no basis to reconsider the applicant’s promotion file by an SSB.

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.




      _______ _  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)                                         AR20090000392



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ABCMR Record of Proceedings (cont)                                         AR20090000392



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