IN THE CASE OF:	  

		BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100026039 


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 a referred Officer Evaluation Report (OER) for the period 2 June 2004 through 31 December 2004 be removed from his record.

2.  The applicant states, in effect, the basis for his request is that the OER in question contains unproven derogatory information in contradiction with applicable Army regulations.

3.  The applicant provides a self-authored statement, copies of the referred OER and OERs for the preceding and following rating periods, excerpts from Army regulations, six memoranda of support, and correspondence from the U.S. Army Human Resources Command returning without action his appeal of the referred OER.  

CONSIDERATION OF EVIDENCE:

1.  The applicant accepted appointment as a Reserve Commissioned Officer of the Army on 31 January 2000.  He entered active duty on 15 January 2003 and continues to serve in that status as a chaplain.

2.  A DA Form 67-9 (OER) for the period 2 June 2004 through 31 December 2004 shows in Part II (Authentication) the OER was referred to him and he indicated he had attached comments.  His rater placed an "X" for "No" in Part IVa (Army Values), item 7 (Duty).

3.  In Part V (Performance and Potential Evaluation (Rater)), the rater placed an "X" in the box for "Satisfactory Performance, Promote" and provided the following comments in Part Vb:

[The applicant] continues to absorb the impact of his return to an active duty assignment.  He has performed adequately in some areas and struggled in others.  He received a letter of reprimand from the Brigade Commander for lack of judgement [sic] and failure to fulfil [sic] his duty.  He deployed to visit Soldiers in Iraq and Afghanistan to ensure free exercise of religion for Soldiers and that adaquate [sic] religious and moral support was available via supported unit ministry teams.  He conducted deployment and reunion briefings, pre-marital, marital, individual, family and crisis counseling in order to develop and maintain a degree of emotional and spiritual family readiness during pre and post deployment periods.  The retreats he conducted to support the Command Master Religous [sic] Program helped instruct families how to improve their communications and stress management skills.  He served the installation as the "On Call Duty Chaplain" as part of the John F. Kennedy Memorial Chapel staff.

	Consider for promotion after further develpmental [sic] assignments.

4.  In Part VII (Senior Rater), his senior rater placed an "X" in the box for "Fully Qualified," and provided the following comments in Part VIIc (Comment on Performance/Potential):

[The applicant] provided heartfelt and trusted counsel to the battalion's Soldiers and families.  This support was beneficial to the command's on-going combat rotations.  He received a Memorandum of Reprimand from the Brigade Commander for conduct characterized as a significant departure from the care and competence expected of an officer within this command.  His questionable judgment undermined his chain of command's faith and confidence in him.  Continue to develop and groom for positions of additional responsibility.  Reevaluate [his] potential following reassignment as a battalion chaplain.

5.  On 27 February 2005, in his response to the referred OER, the applicant stated, in effect, that reference to the memorandum of reprimand was inappropriate because it was given to him after the end of the rating period, was not for punishment, and its placement in his record was to be determined by a general officer.  He further noted he was not charged, disciplined, or formally counseled for events that occurred during the rating period.

6.  The record is void of documentation pertaining to any incidents that occurred during the rating period in question or documentation pertaining to a memorandum or letter of reprimand.  

7.  In his self-authored statement, the applicant states, in effect, that comments made by his rater and senior rater regarding a memorandum of reprimand were in violation of Army regulations governing information allowed on an OER.  He further states that a general officer found the memorandum to be unsubstantiated and it was not filed in his Official Military Personnel File (OMPF).  He did not appeal the OER at the time based on advice from senior chaplains.

8.  The memoranda of support provided by the applicant commend his duty performance, character, and commitment to Soldiers and their families.

9.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  It states unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity.

	a.  The regulation provides that an administrative memorandum 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 memorandum 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.

	b.  A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the OMPF, 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 Army Regulation 600-37, chapter 7.

	c.  Authority to issue and direct the filing of a memorandum of reprimand in the Military Personnel Records Jacket (MPRJ) of commissioned officers is restricted to the recipient's immediate commander or a higher level commander in the chain of command (if such commander is senior in grade or date of rank to the recipient); the designated rater, intermediate rater, or senior rater under the officer evaluation reporting system; or any general officer (to include one frocked to the rank of brigadier general) who is senior to the recipient or an officer who exercises general court-martial jurisdiction over the recipient.  

	d.  A letter designated for filing in the MPRJ only may be filed for a period not to exceed 3 years or until reassignment of the recipient to another general court-martial jurisdiction, whichever is sooner.  Such a letter will state the length of time it is to remain in the MPRJ. 

10.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, governed the policies and procedures for the OER system when the applicant's referred OER and his appeal were processed.  The policies cited below have been incorporated into Army Regulation 623-3 (Evaluation Reporting System), which currently governs OERs and the OER appeal process.

	a.  Paragraph 3-27 provides that references will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the OER to HQDA.  Any verified derogatory information may be entered on an OER.  This is true whether the officer is under investigation, flagged, or awaiting trial.  While the fact that an officer is under investigation or trial may not be mentioned in an OER 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.  Reports should not be delayed to await the outcome of a trial or investigation.  Reports must be done when due and contain what information is verified at the time of preparation.

	b.  Paragraphs 3-57 and 6-6 provide that an OER 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 opinion and objective judgment of the rating officials at the time of preparation.

	c.  Paragraph 6-10 states 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 material error or inaccuracy is warranted.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for removal of his referred OER.

2.  Other than the OER in question, the record is void of documentation substantiating the applicant's account of events.  There is no documentary evidence showing that mentioning the memorandum of reprimand on his OER constituted inclusion of unverified derogatory information.  Although the memorandum of reprimand was not filed in his OMPF, considering that 6 years have passed it is possible that the document was filed in his MPRJ and later removed.  

3.  There is no apparent reason to doubt the applicant; however, his statement alone does not constitute the clear and convincing evidence required to justify deletion or amendment of an OER.  Clear and convincing evidence would include official documentation showing a general officer determined there was insufficient basis for the applicant's memorandum of reprimand.  

4.  In the absence of evidence clearly and convincingly overcoming the presumption that the OER is administratively correct, there is no basis for granting the requested relief.

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)                                         AR20100026039





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ABCMR Record of Proceedings (cont)                                         AR20100026039



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