IN THE CASE OF:	  

		BOARD DATE:		  24 November 2009

		DOCKET NUMBER:  AR20090012517 


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), covering the period 16 December 2005 through 12 May 2006 from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the OER in question has prevented him from being selected for CW3, and he now faces mandatory separation.  He also claims his subsequent service record shows his performance and conduct has been exemplary and he has successfully turned his career around.  He claims the senior rater (SR) on the appealed OER, a retention board, and his current chain of command all recommend his retention and promotion.  He claims to believe the OER in question failed to accurately assess his potential and his performance during the rating period and focused exclusively on his misconduct.

3.  The applicant provides the following documents in support of his application:  United States Army Human Resources Command (HRC) Memorandum for Record, dated 17 April 2009; Headquarters, 160th Special Operations Aviation Regiment (SOAR) Memorandum, dated 6 May 2009; Headquarters, Combat Aviation Brigade Memorandum, dated 9 July 2009; OERs; Company Memorandum, dated 7 April 2009; Army Special Review Board (ASRB) Memorandum, dated 9 June 2009; ASRB Record of Proceedings; DA Form 2627 (Record of Proceedings Under Article 15, UCMJ); General Officer Memorandum of Reprimand (GOMOR); Board of Inquiry (BOI) Proceedings;  Battalion Memorandum, dated 20 October 2008; Department of Army Suitability Evaluation Board (DASEB) Letter, dated 15 January 2009; Brigade Memorandum, dated 
16 October 2008; and third party supporting statements.
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.  The applicant's military records show that at the time of his application to the Board he was still serving on active duty at Fort Riley, Kansas. 

3.  On 23 May 2006, while serving as a CW2 in Mannheim, Germany, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the UCMJ for violating Articles 92, 109, and 134 of the UCMJ by committing the following offenses on 31 March 2006: failure to obey a lawful order; willfully and wrongfully damaging 5 or more vehicles; being drunk and disorderly; orally communicating certain indecent language; knowingly fraternizing with enlisted persons; and wrongful previous overindulgence in intoxicating liquor that incapacitated him from proper performance of his duties.  The punishment for these offenses was a forfeiture of $1,570.35 pay per month for two months (suspended to be automatically remitted if not vacated before 25 November 2006) and a GOMOR.  The imposing commander, a brigadier general, directed the DA Form 2627 be filed in the performance (P) portion of the applicant's OMPF.  

4.  As a result of the Article 15, the acting 1st Infantry Division Commander, a brigadier general, issued the applicant a GOMOR, in which he reprimanded the applicant for personally vandalizing several privately owned vehicles (POV's) and for his, as the senior officer present, allowing other Soldiers to damage several other POV's all owned by local nationals, causing damage to a total of 
15 vehicles totaling an estimated 300 Euros per vehicle.  He confirmed in the GOMOR that the applicant attempted to leave the scene, was apprehended by the German police, acted aggressively toward police while rightfully grounded and handcuffed, refused to submit to a breathalyzer, and that his blood alcohol level was .170G/100ML at 0400 in the morning.  The imposing commander confirmed the GOMOR was imposed as punishment under Article 15, UCMJ and would be attached to his DA Form 2627 filed in the applicant's OMPF.  
5.  On 13 June 2006, the applicant received the contested OER, which was an annual report covering the period from 16 December 2005 through 12 May 2006. The applicant was evaluated as a UH-60 pilot for the 158th Aviation Regiment, in Germany.  In Part IVa (Army Values) the rater, a first lieutenant, checked the "No" block in response to questions 1 (Honor) and 2 (Integrity).  In Actions (Leadership) he checked the "No" block in response to 2 (Decision Making), 
3 (Motivating), 7 (Developing), 8 (Building), and 9 (Learning).  

6.  In Part V (Performance and Potential), the rater placed the applicant in the 
3 block (Unsatisfactory Performance-Do Not Promote) and entered predominantly unfavorable comments in Part Vb (Comments).  In Part VI (Intermediate Rater), the intermediate rater, the company commander, a captain, provided unfavorable comments and indicated that he had lost all trust and confidence in the applicant.  

7.  In Part VIIa of the OER in question, the SR, a lieutenant colonel, placed the applicant in the 3 block (Do Not Promote).  The SR provided the negative comment that the applicant's behavior was inconsistent with the character required of an officer in the Army and that it was his opinion that the applicant had no potential for further service and should be discharged as soon as possible.

8.  In October 2008, a field BOI convened to determine if the applicant should be separated from the Army prior to the expiration of his current term of service, under the provisions of paragraph 4-2, Army Regulation 600-8-24, by reason of personal misconduct.  The BOI found that the applicant had acknowledged his guilt for his misconduct which occurred in 2006, and had made personal improvements in his life such as no longer consuming alcohol to ensure this behavior did not repeat itself.  Based upon written testimony of his battalion commander at the time of the incident, now the brigade commander of the 160th SOAR, and verbal testimony of every level of his chain of command at the time, the BOI found the applicant had shown great remorse for those events, had become one of the top performing warrant officers (WOs) in his battalion and perhaps his brigade, and that he was continuously hand selected for the most difficult and most dangerous missions in a combat environment.  The BOI recommended that the applicant be retained in the Army.  

9.  On 20 October 2008, the applicant appealed to the DASEB to transfer his Article 15 and GOMOR from the P portion to the restricted (R) portion of his OMPF.  He claimed that the Article 15 had served its purpose.  He also stated that he had been passed over for promotion to CW3 on 1 May 2008, as a result of the unfavorable information contained in his OMPF.  He further contended that he is highly qualified for promotion to CW3.   
10.  On 15 January 2009, the DASEB determined the evidence submitted was sufficient to warrant the relief requested and determined that the Article 15, dated 30 May 2006, and GOMOR should be transferred to the R portion of the applicant's OMPF.

11.  On 7 April 2009, the applicant appealed the OER in question based on substantive inaccuracy claiming that his OER was an inaccurate assessment of his potential for future service and unjust.  He stated his OER was based on a single terrible lapse of judgment that was admittedly contrary to the character expected of Army officers.  However, other than this single incident his performance that rating period was of an outstanding officer and pilot.  He further stated that his SR in the appealed report concluded that he does have potential for the Army and now supported removal of the OER in question.

12.  The applicant provided a supporting statement from the Colonel who initially gave him the appealed evaluation.  This individual states the applicant was involved in an alcohol-related incident in March 2006, and that his actions and the events that occurred were inexcusable.  However, since the incident he made a complete lifestyle change, and for the last two years and seven months had maintained an alcohol-free life, remained honest, trustworthy and loyal to the Army's Mission.  He further stated that he strongly and wholeheartedly recommended that the applicant be promoted to CW3.  

13.  The applicant also provides a supporting statement from his current commander, dated 9 July 2009.  The commander states the applicant is one of his best WOs.  He also states that the applicant accepted that what he did was wrong and never complained about the punishment or adverse actions.  His misconduct was dealt with at the time and his punishment has served its purpose.  He further states that the applicant has remarkable potential as an aviator, officer, and leader and that he strongly recommended the removal of the applicant's OER in question and strongly endorses his promotion to CW3.

14.  On 4 June 2009, the ASRB concluded by unanimous vote that the overall merits of the applicant's appeal did not support a change to or removal of the contested OER from the OMPF.  

15.  On 17 April 2009, the Director of Officer Personnel Management, Alexandria, Virginia, notified the applicant that he had been considered for promotion to CW3 by the DA Fiscal Year 2009 CW2 and CW3 Technical Services and Aviation Army Promotion Board, and was unfortunately not selected for promotion. 

16.  The HRC official further informed the applicant that pursuant to Title 10 USC, Section 580(e)(1), he must separate from the Army no later than the first day of the seventh month after the approval of the respective promotion board report; therefore, he had to be honorably separated no later than 1 November 2009.

17.  Army Regulation 623-105 (Officer Evaluation Reporting System) 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 and Officer Evaluation Reporting System.  It also provided guidance regarding redress programs including commander inquiries and appeals. 

18.  Paragraph 3-57 of Army Regulation 623-105 provided 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 (DA), 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 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.  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.

19.  Chapter 6 of Army Regulation 623-105, in effect at the time contained the policies and procedures pertaining to managing the OER redress program.  Section III contains guidance on OER appeals and paragraph 6-10 outlined the burden of proof that must be met to support a successful OER appeal.  Paragraph 6-6 stated, 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. 

20.  Paragraph 6-10, of the same regulation in effect at the time contained 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the OER in question is unjust and has prevented his selection to CW3 was carefully considered.  However, there is insufficient evidence to support amendment or removal of the OER in question.  

2.  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 has had on his future, but fails to show any material error, inaccuracy, or injustice related to the report at the time it was rendered.  As a result, it is concluded that the OER in question was processed and accepted for filing in the OMPF in accordance with applicable regulations, and there is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity, and/or to remove the contested report from the record at this time.  

3.  Absent any specific evidence of material error, inaccuracy, or injustice in the contested OER, it is concluded the evaluations rendered on the applicant in this report represents the considered opinions and objective judgment of the rating officials at the time of preparation.  Therefore, there is an insufficient evidentiary basis to support granting removal of the OER.

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)                                         AR20090012517



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ABCMR Record of Proceedings (cont)                                         AR20090012517



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