IN THE CASE OF:	  

		BOARD DATE:	  6 April 2010

		DOCKET NUMBER:  AR20100000956 


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 reconsideration of the Board's denial of his previous request for removal of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rated period 1 October 2003 through 1 September 2004 (hereafter referred to as the contested OER) from his records.  He also requests, in effect, that if the contested OER is removed, that all references to the OER be removed; all non-selections, etc., resulting from the OER be removed; and that he be promoted to lieutenant colonel with an effective date of 1 January 2007.

2.  The applicant states the OER includes false information, information from outside the rating period, and is a personal attack, not a professional assessment of his performance and abilities.  He further states he appealed the contested OER, which was altered, but not removed.  He states he then appealed it a second time, but the appeal was not considered due to lack of "new evidence."

3.  The applicant provides a copy of a State U.S. Property and Fiscal Office (USP&FO) for North Carolina memorandum, dated 24 November 2009; a memorandum from him to the Board, dated 4 September 2009; two additional supporting statements; and other documents provided in the first consideration.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080019425 on 23 April 2009.
2.  The USP&FO memorandum provided by the applicant is new evidence which requires the Board to reconsider his request.

3.  The applicant's records show he was appointed as a second lieutenant in the North Carolina Army National Guard (NCARNG) on 27 June 1988.  He was promoted to major on 4 January 2001.

4.  On 1 December 2000, the applicant was reassigned to the U.S. Joint Forces Command (USJFCOM), Suffolk, VA.  He was subsequently reassigned to the USJFCOM ARNG Element, Norfolk, VA, as a joint combat engineer on 1 December 2001.

5.  On 1 September 2004, the applicant was released from his assignment to the USJFCOM ARNG Element and was reassigned to the Joint Forces Headquarters, NCARNG.  In connection with this reassignment, the applicant received a "reassignment" OER which covered 8 months of rated time from 1 October 2003 through 1 September 2004 for his duties serving as a joint combat engineer with the USJFCOM ARNG Element.  His rater was a lieutenant colonel and his senior rater was a colonel.  The contested OER shows the following entries:

	a.  In Part IVa (Army Values) the rater placed an "X" in the "No" blocks for "Honor," "Integrity," and "Duty";

	b.  In Part V (Performance and Potential Evaluation) the rater placed an "X" in the "Unsatisfactory Performance - Do Not Promote" block and entered the following remarks in Part Vb:

[Applicant] will benefit from returning to a traditional unit where he can receive professional leadership and supervision from senior leaders.  He needs to continue to develop the Army values honesty, integrity, and duty.  [Applicant] knowingly filed fraudulent travel documents and DA Form 1380 per records.  He also had difficulty following proper administrative procedures in regards to his rescheduled drills and taking his APRT [Army Physical Readiness Test] at the proper time.  Duty at Joint Forces Command requires officers to perform at the highest level of competence and professionalism.  [Applicant] was not able to perform to this high standard in all of the areas expected of him while assigned to this command.  He should remain in the military; recommend assigning him to non-leadership.

	c.  In Part VII (Senior Rater), the senior rater placed an "X" in the "Do Not Promote" block and entered the following remarks in pertinent part in Part Vc:

During counseling with both his rater and myself, and later during an interview with the Joint Reserve Unit Commander, [Applicant] admitted filing the documents and that he knew the documents were fraudulent.  [Applicant] offered no satisfactory explanation for his actions except to admit doing it.  [Applicant] also failed to take the scheduled make-up APRT and had to be ordered to take it at a later date.  Additionally, [Applicant] failed to follow proper procedures for rescheduling drills and was evasive in his e-mail communications on the subject.  [Applicant] shows little potential for continued satisfactory service.  Should he stay in the military, recommend assigning him to non-leadership, non-primary staff positions.

6.  On 1 August 2005, the contested OER was referred to the applicant for acknowledgement and/or comments.  He subsequently acknowledged receipt and submitted a statement on his own behalf.  In his statement, the applicant stated that:

	a.  he did not fail to follow proper procedure with respect to rescheduling a drill and that although his senior rater neither approved nor disapproved his request to reschedule the drill, his actual commander approved it;

	b.  he did not willingly submit a fraudulent claim for pay or travel but attempted to balance USJFCOM policies with those of the NCARNG as the two were at odds;

	c.  he missed the Army Physical Fitness Test during drill month to attend his brother's wedding and he did not have the proper gear the following month; and

	d.  his senior rater felt his power was threatened and went on a witch hunt and/or a power trip culminating in the contested OER.

7.  The contested OER was processed by the U.S. Army Human Resources Command - St. Louis on 23 November 2005.

8.  On 9 April 2007, the applicant submitted an appeal of the contested OER based on unjust and inaccurate statements made by his senior rater.  Upon receipt at the National Guard Bureau (NGB), the Chief, Personnel Division, forwarded the OER and supporting evidence to the Officer Special Review Board (OSRB) on 11 April 2007.

9.  On 30 November 2007, the OSRB notified the applicant by memorandum that his appeal was partially approved and that the NGB was directed to make the following changes to the contested OER:

	a.  In Part V(b), remove the sentences, "[Applicant] knowingly filed fraudulent travel documents and DA Form 1380 records.  He also had difficulty following proper administrative procedures in regards to his rescheduled drills and taking the APRT at the proper time" and insert the following sentence in place of the material removed, "[Applicant] admitted to filing a fraudulent travel claim."

	b.  In Part VII(c), remove the entire narrative and insert the following narrative, "[Applicant] is a bright officer who would normally do well at any assigned task.  During this rating period, however, he unfortunately chose to tarnish his service by filing a fraudulent travel document and admitting it to both his rater and myself.  During an interview with the Joint Reserve Unit Commander, [Applicant] admitted to filing the document and that he knew it was fraudulent.  [Applicant] shows little potential for continued satisfactory service.  Should he stay in the military, recommend assigning him to non-leadership, non-primary staff positions."

	c.  File the appeal documentation in the restricted portion of his official military personnel file (OMPF).

10.  On 19 July 2008, the Chief, Personnel Division, NGB, notified the applicant by memorandum that administrative action was taken to correct his records as stipulated by the OSRB's decision.

11.  On 19 September 2008, the applicant requested reconsideration of his previous appeal to remove the contested OER from his records by memorandum to NGB and, on 11 December 2008, NGB forwarded his request to the ABCMR.

12.  In a memorandum, dated 19 September 2008, the applicant states the following:

	a.  his appeal is a substantive appeal based on his belief that the evaluation was personal in nature, inaccurate, incomplete, and is based on partial information and assumptions;

	b.  the OER was not submitted within the time period required by regulation and it arrived a year after the close-out date;

	c.  his senior rater based the OER largely on one incident which he had no responsibility or authority over (the scheduled drill);

	d.  he could not have filed a fraudulent voucher and admit to doing so.  His senior rater was either confused about the issue or misrepresented the facts; and

	e.  the travel voucher his senior rater alluded to was done before the rating period began and was only done after he consulted with four subject matter experts.  However, his senior rater based his own suspicions, assumptions, and prejudice based on the senior rater's personal displeasure with him.

13.  In a memorandum from the applicant to the Board, dated 4 September 2009, the applicant indicates he filed his travel voucher before going off orders while he was still in Virginia.  These orders ended on 26 September 2003.

14.  In electronic mail (e-mail) to NGB, dated 19 November 2009, the applicant states that the final travel voucher submitted for his 54 days on active duty was 100-percent legal, legitimate, and correct and that his senior rater discovered and acted on an early draft.  Later in the same e-mail he says pay branch personnel called him to say he could not do it that way.  He says there was some confusion about whether he would re-submit or whether pay branch personnel would fix it.  He says, in effect, that, therefore, neither a correct nor fraudulent travel voucher was ever submitted.

15.  A State USP&FO memorandum, subject:  ODS [Operation Data Store] Transaction History for [Applicant], dated 24 November 2009, states an attached ODS transaction history represented all travel disbursements made to [applicant] through the Integrated Automated Travel System for Windows and Defense Travel System to reimburse travel for the member since his travel account was established in March 2001.  An Individual Traveler Valid Payment History, dated 18 November 2009, shows no disbursement dates between the period of 27 March 2001 and 31 March 2004.

16.  On 24 December 2009, an advisory opinion was obtained from the NGB Personnel Division in the processing of this case.  NGB recommended the contested OER be removed and a non-rated period memorandum be placed in his OMPF.  NGB recommends that if the Board approves removal of the contested OER, the applicant's records be forwarded to a Special Selection Board for promotion consideration under the 2008 criteria.  NGB states the recommendation to remove the contested OER is based on new evidence provided by the State USP&FO memorandum, dated 24 November 2009.

17.  NGB continues stating that according to the memorandum referenced above and the copy of the Individual Traveler Valid Payment History, dated 18 November 2009, provided by the State, no travel vouchers were submitted for processing for the years 2002 and 2003.  It does reflect one travel voucher submitted in the early part of 2004.

18.  The advisory opinion was forwarded to the applicant for acknowledgement or feedback.  He did not submit a response.

19.  Army Regulation 623-105 (Officer Evaluation Reporting System (OERS)), 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 OERS.  It also provided guidance regarding redress programs including commander inquiries and appeals.  Paragraph 3-57 of this regulation provides the basic rule applicable to modifications of previously submitted reports.  It states 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, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also states requests to alter, withdraw, or replace a report that has been accepted for filing in an officer's record 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.

20.  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 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, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

21.  Paragraph 6-10 of Army Regulation 623-105 contains guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It states 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 paragraphs 3-57 and 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 evidence of record shows the contested OER contained comments that the applicant perceived to contain alleged errors and injustices.  Accordingly, he appealed the OER to the OSRB and was granted partial relief.  However, the applicant still believes that the evaluation was personal in nature, inaccurate, incomplete, and is based on partial information and assumptions.

2.  The applicant contends the partially-corrected contested OER should be removed because it contains information outside the rating period and false information.  In effect, he contends the personality conflict with his senior rater caused the referred OER.  However, both his rater and senior rater state he admitted to filing the false claim.  As such, the preponderance of evidence shows the contested OER is accurate.

3.  While he submits new evidence showing he was never paid for travel during the rating period of the contested OER, this evidence does not show he did not submit/file the claim, only that he was not paid.  The claim could have been returned from the pay branch and not processed for payment.

4.  Notwithstanding NGB's recommendation to remove the contested OER based on the USP&FO memorandum with his travel claim disbursement history, this document does not prove or disprove his intent to file a fraudulent travel voucher or whether he submitted a voucher for payment that was never processed and paid.  It is easy for the applicant to now say the travel claim as seen by his rater was a "draft" and that he did not intend to or did not file it.  However, that contention can't be proven or disproven.

5.  The applicant indicates he filed a travel voucher before completing his active duty in September 2003.  It appears this is not reflected on the Individual Traveler Valid Payment History.  He also indicates he spoke with the pay branch about the way the travel voucher was completed and that it was not correct.  It can be presumed that the pay branch would have either processed the travel voucher in question or returned it to the applicant for correction.  Even if the pay branch did not process the filed/submitted travel voucher, this does not constitute the applicant having never filed the claim.  As such, there is insufficient evidence and the applicant has provided none to show the contested OER is substantively inaccurate and does not accurately reflect his performance or potential or that his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  The applicant did not provide clear and convincing evidence to overcome the "presumption of regularity" and justify the removal of the contested OER.  Based on the applicable regulations, the contested OER is correct as constituted and the applicant did not meet the burden of proof to justify removal of the contested OER.  Therefore, there is no basis for removal of the contested OER.

6.  Since there is no basis for removal of the contested OER, there is no basis for granting the remainder of his request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080019425, dated 23 April 2009.



      ___________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)                                         AR20100000956



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100000956



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1