IN THE CASE OF:	  

		BOARD DATE:	  29 October 2010

		DOCKET NUMBER:  AR20100011948 


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, reconsideration of his earlier request to remove the following documents from his Official Military Personnel File (OMPF):

* Written Reprimand, dated 10 October 2000
* Relief for Cause Officer Evaluation Report (OER) for the period 15 April 2000 through 21 September 2000
* All other documents that refer to his arrest that took place during September 2000

2.  As a new issue, he also requests removal of the following documents from his OMPF:

* Discontinuation of Elimination Action memorandum, dated 10 March 2010
* Initiation of Elimination and Rebuttal Packet, dated October 2009 through 5 November 2010
* Resolution of Unfavorable Information packet, dated 13 August 2003
* Request to Withdraw Memorandum of Reprimand Packet, dated 8 April 2003 

3.  The applicant states he would like a chance to continue his service on active duty as an Active Guard Reserve (AGR) officer.  He recently received a favorable decision from the Commanding General (CG), U.S. Army Human Resources Command (HRC), regarding his duty status and potential and despite this 


favorable decision he believes he would be passed over for promotion to lieutenant colonel and ultimately discharged unless the Board grants him relief.  He adds that aside from this isolated incident, his performance has been excellent.  He states the negative information in his file happened over a decade ago and he has since been supportive of his family and demonstrated a high degree of patriotism.  Additionally, a review of his OERs would clearly show he was rated as one of the best officers with great potential.

4.  The applicant provides the following documents:

* Initiation of Elimination Action memorandum
* Elimination action memorandum
* Former counsel letter to the CG, HRC
* Written Reprimand and rebuttal
* Contested OER and supplementary review
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Oath of Office
* Various OERs from July 2001 through January 2009
* Promotion to major (MAJ) memorandum
* AGR application
* Various award certificates, citations, and training records
* Officer Record Brief
* Report of Unfavorable Information for Security Determination
* Polygraph Examination Quality Control results
* Report of Polygraph Examination
* State of Texas District Court Order of Expunction
* Counsel letter to HRC, St. Louis, MO (HRC-STL)
* Request to Withdraw GOMOR and allied documents
* OER Appeal packet with allied documents

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 AR20090010760 on 29 December 2009.

2.  In connection with the portion of his request for reconsideration pertaining to the written reprimand and the OER, the applicant did not submit any new documentary evidence; however, he made a new argument, which was not 


previously considered by the Board.  Additionally, in connection with his retention, he submitted several memoranda pertaining to the discontinuation of elimination action.  Both his new argument and the documents related to discontinuation of his elimination action are considered new evidence and warrant consideration by the Board.

3.  The applicant's records show he was appointed as a second lieutenant in the U.S. Army Reserve (USAR) on 13 May 1988 and he subsequently entered active duty on 3 January 1989.  He served in various command or staff positions, as a Military Intelligence (MI) officer within and outside the continental United States, and attained the rank/grade of captain (CPT)/O-3.

4.  On 21 September 2000, the applicant was relieved from command of a recruiting company in Texas because he assaulted his wife and then tried to hide from the Army a subsequent criminal proceeding.  This relief action also generated a relief for cause OER.

5.  On 10 October 2000, his battalion commander reprimanded the applicant for misconduct.  The battalion commander stated that he had reviewed the report of investigation, dated 11 September 2000, regarding allegations that he engaged in misconduct while in the position of a company commander and that the preponderance of evidence substantiated that he had committed serious offenses by assaulting his wife and attempting to cover up his arrest.  The reprimand stated that his actions compromised his ability to command and his assault on his wife qualified as a misdemeanor crime of domestic violence under the Lautenberg Amendment and as a result, he was no longer allowed to possess, receive, ship, or transport firearms or ammunition and because of his actions, his value to the Army diminished. 

6.  On 24 October 2000, the applicant acknowledged receipt of the written reprimand and submitted a rebuttal wherein he expressed regret of his actions as those actions cost him the loss of a follow-on assignment, embarrassment, and corrective classes/training.  

7.  On 17 November 2000, by memoranda, the applicant's brigade commander recommended the written reprimand be filed in the applicant's OMPF.  

8.  On 18 December 2000, the CG, U.S. Army Recruiting Command (USAREC), Fort Knox, KY, after reviewing the written reprimand imposed against the applicant, his rebuttal, and the chain of command's recommendation, directed the reprimand be filed in the applicant's OMPF.

9.  The written reprimand is currently filed in the performance section of the applicant's OMPF.

10.  During the month of September 2000, the applicant received the contested OER, a relief for cause OER which covered 4 months of rated time from 15 April 2000 through 21 September 2000 for the applicant's duties while serving as a company commander.  His rater was a lieutenant colonel (LTC) and his senior rater was a colonel (COL).  The OER shows the following entries:

	a.  In Part IVa (Performance Evaluation - Professionalism - Values), the rater placed an "X" in the "No" block for all seven values except for "Loyalty," wherein he received a "Yes" rating.

	b.  In Part IVb (Performance Evaluation – Professionalism - Leader Attributes/
Skills/Actions), the rater placed an "X" in the "Yes" block as appropriate but he placed "X" in the "No" blocks for "Mental" and "Decision-Making."

	c.  In Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Satisfactory Performance - Do Not Promote" block and entered comments in Part Vb as follows:

[Applicant] has been relieved of command of the Austin Recruiting Company, San Antonio Recruiting Battalion for cause.  [Applicant] was arrested for assault - physical contact of his wife.  Furthermore, [Applicant] attempted to conceal this incident from his chain of command.  As a direct result of those actions, I have lost faith and confidence in his ability to command the Austin Recruiting Company.  [Applicant] showed a disregard of Army values by both his physical action and lack of moral action.  By assaulting his wife, [Applicant] violated the Army values of honor, courage, and respect.  By attempting to keep his arrest from his chain of command, [Applicant] violated the Army rules of integrity, selfless service, and duty.  In addition, [Applicant's] actions reflect poorly on the mental and emotional attributes of leadership, in that he was unable to maintain his personal discipline when he lost control of his temper and assaulted his wife.  Lastly, [Applicant's] actions reflect poorly on his decision making ability, in that his decision to not immediately inform his chain of command showed a lack of personal integrity on his part.  During this rating period, [Applicant] had been one of the best company commanders in this battalion.  His genuine concern for his Soldiers, their mission, and the mission of his recruiting company had 


always been foremost in his mind.  Unfortunately, [Applicant's] arrest and attempt to conceal that event from his chain of command has undermined his ability to continue as the commander of the Austin Recruiting Company.  Recommend [Applicant] be continued on active duty, in his present rank, to serve the needs of the Army.

	d.  In Part VIIa (Senior Rater), the Senior Rater placed an "X" in the "Do Not Promote" block, rated him as "Below Center Mass," and entered the following comments:

I relieved [Applicant] from command of the Austin Recruiting Company, San Antonio Recruiting Battalion, due to his lack of professionalism, poor judgment, and misconduct.  [Applicant] was arrested for a domestic disturbance involving his wife.  He knowingly concealed this fact from his chain of command and in doing so compromised his integrity and his ability to continue to command the Austin Recruiting Company.  Prior to this incident, [Applicant's] duty performance was exemplary and he developed one of the best college recruiting programs within the 5th Recruiting Brigade.  [Applicant's] actions cannot be tolerated.  He lost my trust and failed to meet the standards expected of him as a commissioned officer in the United States Army.  Recommend [Applicant] be retained in his current grade and assigned to staff positions.

11.  On 13 November 2000, after the OER had been referred to the applicant, the USAREC Deputy CG conducted a supplementary review.  

12.  The applicant was honorably discharged from active duty on 1 March 2001 by reason of non-selection for promotion.  

13.  On 9 July 2001, the applicant was appointed a captain in the USAR.  On    18 October 2001, he entered active duty in support of Operation Noble Eagle.  He was honorably released from active duty to the control of his USAR unit on  17 October 2003.  

14.  While on active duty, the applicant appealed, in two separate requests, to the Department of the Army Suitability Evaluation Board (DASEB) for relief, requesting removal of the reprimand and Relief for Cause OER from his OMPF.  The applicant provided a copy of the court-ordered expunction of the arrest record and a letter from his civilian counsel explaining the court's action.

* On 10 January 2003, the DASEB denied his appeal to remove the GOMOR
* On 7 March 2003, the DASEB determined the evidence he submitted did not justify altering or withdrawing the subject OER from his OMPF and denied his appeal to remove the OER
* On 13 August 2003, the DASEB denied his request for reconsideration to remove the GOMOR based on the court-ordered expunction of the arrest record

15.  The applicant's appeals to the DASEB and allied documents are filed as follows:

* November 2002 request to remove the GOMOR is in the restricted section of his OMPF
* November 2002 denial of OER withdrawal is in the performance section of the OMPF
* His request is in the restricted section of the OMPF

16.  On 16 March 2006, HRC-STL issued the applicant his Notification of Eligibility for Retired Pay at Age 60 (known as the 20-year letter).

17.  On 5 October 2009, by memorandum, the CG, HRC, Alexandria, VA
(HRC-ALEX) notified the applicant of the initiation of elimination action against him in accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges).  The elimination action was based on the fact that he received a written reprimand and a relief for cause OER on 10 October 2000.  Additionally, he misrepresented material facts on his AGR application when he claimed he had never been arrested and charged.  His actions called into question his suitability for continued service in the Army.

18.  On 10 March 2010, by memorandum, after carefully reviewing the applicant's request to remain in the Army and the matters he submitted, the CG, HRC-ALEX ordered the discontinuance of the elimination action.

19.  The applicant's submission asserts the following accomplishments since receipt of the reprimand and subsequent relief from command and discharge from the Army: 

* He received five OERs, two of which were above center of mass
* He exceeded course standards in a military training course
* He was awarded two Meritorious Service Medals
* He passed a polygraph test and he was granted a top secret clearance


20.  Army Regulation 600-37 (Unfavorable Information) provides in pertinent part that administrative letters of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The letter must be referred to the recipient and the referral must include and list applicable portions of investigations, reports or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made.  Letters of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer level authority and are to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the letter.  If the reprimand is to be filed in the OMPF then the recipient's submissions are to be attached.  Once filed in the OMPF the reprimand and associated documents are permanent unless removed in accordance with chapter 7.

21.  Chapter 7 of the regulation provides that once filed in an OMPF a document is presumed to have been administratively correct.  Appeals to the DASEB to relocate a reprimand, admonition or censure are based on proof that the intended purpose has been served and that transfer to the restricted section would be in the best interest of the Army.  The DASEB will return appeals unless 1 year has elapsed and at least one nonacademic evaluation has been received since the letter was imposed.  If the appeal is denied, the DASEB letter of denial will be filed in the performance section, the appeal itself and any associated documents will be filed in the restricted section.  Otherwise, this Board may act in accordance with Army Regulation 15-185.

22.  Army Regulation 623-105 (Officer Evaluations), in effect at that time, established the policies and procedures for the OER system.  It stated that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, was 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.  Paragraphs 3-57 and 6-6 of that regulation stated 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 error or inaccuracy is warranted.


23.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the OMPF.  Chapter 2 of this Army regulation provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF.  Documents will be placed in the performance or restricted sections as they are received by the custodian.  Documents filed are those that must be permanently kept to record a Soldier’s military service, manage a Soldier’s career, and/or protect the interests of both the Soldier and the Army.
Table 2-1 (Composition of the OMPF) shows the following:

* Administrative letters of reprimand, referral correspondence, rebuttal, and allied documents are filed in the performance section
* DA Form 67 series (Officer Evaluation Report) are filed in the performance section 
* DASEB document denying request for removal of administrative letters of reprimand are filed in the performance section
* Denials of review of the ABCMR with allied documents are filed in the restricted section
* Department of the Army directed elimination actions are filed in the restricted section

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that since the CG, HRC-ALEX ordered his retention, his 2000 reprimand and relief for cause should be removed.  Additionally, he contends other unfavorable documents should also be removed from his OMPF.

2.  The evidence of record clearly shows the applicant received a reprimand for misconduct and that it was filed in his OMPF.  He acknowledged he had read and understood the unfavorable information presented against him and also admitted to the misconduct.  Subsequently, the reprimand was referred by a general officer for filing in the applicant’s OMPF.  

3.  The reprimand was properly administered in accordance with applicable regulations and properly filed in the performance section of the applicant’s OMPF.  There is no evidence of any violation of any of the applicant’s rights.  His recent retention in the USAR has no bearing on his GOMOR.  He has provided insufficient evidence or argument to form a basis for removing the reprimand from his OMPF or for moving it to the restricted portion of his OMPF. 


4.  With respect to the relief for cause OER, subsequent to receiving the reprimand the applicant's rating officials rendered a relief for cause report on him.  The OER addressed the applicant's achievements and his failures as required by the governing regulation.   There is no evidence and he 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.  

5.  By regulation, to support removal or amendment of a report there must be evidence that clearly and convincingly establishes that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  The applicant’s argument addresses his overall performance and the impact the contested report will have on his future, but fails 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.

7.  With respect to his subsequent appeals to the DASEB to remove the reprimand and/or the OER, the available evidence shows the DASEB considered and denied the applicant's requests for removal of the contested reprimand and subject OER.  The DASEB decision directed that the board's decision be filed in the performance section and the appeal be filed in the restricted section.  These documents are properly filed in his OMPF as required by applicable regulation.  The applicant has not provided any evidence or argument for this Board to remove them.

8.  With respect to the elimination action memorandum and subsequent decision of the CG, HRC-ALEX to retain him, these documents were provided by the applicant and are not filed in his OMPF.

9.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  In regard to the applicant's new issues, 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.

2.  In regard to the applicant's request for reconsideration of his previous issues, 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 decisions of the ABCMR set forth in Docket Number AR20090010760 on 29 December 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)                                         AR20100011948



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ABCMR Record of Proceedings (cont)                                         AR20100011948



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