IN THE CASE OF:	  

		BOARD DATE:	      18 AUGUST 2009

		DOCKET NUMBER:  AR20090000873 


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 an Officer Evaluation Report (OER) ending on 8 February 2004 and a General Officer Memorandum of Reprimand (GOMOR) attached to the OER be removed from his Official Military Personnel File (OMPF). 

2.  The applicant states, in effect, a GOMOR he received, dated 5 July 2003, was directed to be filed in his Military Personnel Records Jacket (MPRJ) for a 3-year period.  However, the OER ending 8 February 2004 he received refers to the GOMOR and has documents attached which also refer to the GOMOR.  He states that since the period the GOMOR was to be filed in record has expired, the OER and all related documents referring to the GOMOR should be removed from his OMPF.  

3.  The applicant provides the following documents in support of his request:  OER, dated through 8 February 2004; self-authored letter, dated 19 February 2004; Commanding General's (GG) Letter, dated 5 July 2005; 11th Engineer Group letter, dated 4 July 2003, and referral memorandum, dated 9 February 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he was appointed a Reserve commissioned officer, in the rank of second lieutenant (2LT), in the Massachusetts Army National Guard (MAARNG) on 12 August 1996.  He was promoted to first lieutenant (1LT) on 15 December 1998, and to captain (CPT) on 7 May 2003.
2.  On 21 February 2004, while serving with the 368th Engineer Combat Battalion, the applicant received an annual OER for the period 9 February 2003 through 8 February 2004.  This report evaluated the applicant as the "platoon leader" of a 35 Soldier General Construction Platoon in an Engineer Combat Company (Heavy) with the mission of supporting the Coalition Forces Land Component Commander's (CFLCC) mission by conducting general, engineering, limited mobility, counter-mobility and survivability projects in the theater rear area of Kuwait.

3.  In Part IV (Performance Evaluation-Professionalism) of the OER, the rater, a CPT, checked the "Yes" block in response to every question in Part IVa 
(Army Values) and Part IVb (Leader Attributes/Skills/Actions).  In Part V (Performance and Potential Evaluation-Rater), the rater placed the applicant in the second block (Satisfactory Performance, Promote) and in Part Vb (Comments) the rater stated that the applicant’s performance was good during the rating period and that he was voluntarily reassigned to Charlie Company for deployment in order to fill a shortage of officers in the company.  He indicated that the applicant gained 15 new Soldiers during the mobilization process and that through collective training, he formed the 2nd General Construction platoon into a functioning platoon despite the platoon consisting of thirty three percent new Soldiers and dysfunctional platoon noncommissioned officer (NCO) leadership.  The rater also indicated that the applicant's interpersonal skills to develop working relationships with other CFLCC units resulted in the request for his platoon to work by other commands.  The rater further stated that the applicant's leadership in over 50 construction missions was a significant accomplishment for someone who had no previous military construction experience prior to the deployment.  The rater finally indicated that the applicant had completed the Engineer Advance Course in January 2004, recommended he complete an additional course, be considered for a battalion staff position, and be promoted with his peers.

4.  In Part VIIa (Promotion Potential) the senior rater (SR), a LTC, placed the applicant in the third block (Do Not Promote).  The SR's supporting comments indicated the applicant had inconsistent performance while serving as a platoon leader of an engineer platoon engaged in mobility and sustainment support to the Joint Rear of the CFLCC during Operation Enduring Freedom.  He also stated that the applicant had been proactive and led his platoon with enthusiasm and good technical skill, worked independently and remote from his battalion and company headquarters.  The SR further stated that the applicant had violated CENTOCOM GO 1A and he received a reprimand during the rating period.  The SR stated that since that occurrence the applicant had demonstrated sound judgment and recommended he be retained and considered for company command following successful completion of staff officer positions.
5.  On 9 February 2004, the battalion commander referred the OER in question to the applicant for his acknowledgment and comments if desired.  On 
19 February 2004, the applicant acknowledged receipt of referral and provided comments.  In his comments, he indicated that he had been very candid and forthcoming about his single violation of United States Central Command (CENTCOM) General Order (GO) Number 1A and indicated that he was in fact the one who notified his commander of the transgression to put things in the open and hopefully behind him.

6.  The GOMOR in question is no longer on file in the applicant's MPRJ and is not on file in his OMPF.  The referred OER notification memorandum, dated 
9 February 2004, and the applicant's response memorandum, dated 19 February 2004, are attached to the contested OER and remain on file in the applicant's OMPF.  

7.  The applicant provides a memorandum from the Commander, 111th Engineer Group, dated 4 July 2003, in which the battalion commander recommended that the contested GOMOR be filed in the applicant's MPRJ for 3 years.  He also provides a memorandum from the Commander, 416th Engineer Command, dated 5 July 2003, in which the general officer who issued the GOMOR directed it be filed in the applicant's MPRJ for 3 years.

8.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies and procedures for completing evaluation reports that support the ERS.  It also provides guidance regarding redress programs including commander inquiries and appeals.  Paragraph 3-23 provides, in pertinent part, that any verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's use of verified derogatory information.  For example, when an interim report with verified information is made available to a commander, the verified information may be included in an OER, NCOER, or Academic Evaluation Report.  For all reports, if previously reported information later proves to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the report.  Paragraph 3-38 contains guidance on enclosures to OERs and states, in pertinent part, that the SR letter of referral and the rated officer's acknowledgement and comments regarding a referred report are authorized enclosures to the OER and will be filed with the report on the OMPF. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the contested OER and all related documents that refer to his GOMOR should be removed from his OMPF because the directed 3-year filing period for the GOMOR has expired has been carefully considered.  However, by regulation, any verified derogatory information may be entered on an evaluation report and documents related to a referred report are required to be enclosures to the OER.  Therefore, there is an insufficient evidentiary basis to support the removal of the documents in question from the OMPF at this time.  

2.  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 has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090000873



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ABCMR Record of Proceedings (cont)                                         AR20090000873



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