IN THE CASE OF:	  

		BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100026693 


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 transfer of his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 21 May 2006 through 31 October 2006 to the restricted portion of his official military personnel file (OMPF).

2.  The applicant states the following:

	a.  This report contains substantive and damaging inaccuracies alleging he sexually harassed a Soldier under his leadership and he did no such thing.

	b.  An investigation was done substantiating the allegation and he was relieved of his position and given a referred OER stating that he was relieved for creating a hostile work environment; therefore, sexually harassing his Soldier.

	c.  The investigation was based on hearsay and opinions, not facts.  In fact, the investigation found no evidence of harassment or anything sexual in nature.  It only found a hostile work environment which was caused by him holding his people responsible for their actions.

	d.  He submitted an appeal for which a response requesting clarification of his request was sent to an email account at Fort Lewis, but he was serving a 1-year tour of duty in Afghanistan at the time and did not discover the response until he redeployed.  The second time he submitted his appeal the allowable 3-year period for appeal of an evaluation report had elapsed.

3.  The applicant provides a memorandum for record from the investigating officer; the OER in question; a memorandum, subject:  Notification of Potential Adverse Administrative Action; extracts from Army Regulation 600-20 (Army Command Policy) and Army Regulation15-6 (Procedures for Investigating Officers and Boards of Officers); and investigation-related documents.

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 enlisted service in the Regular Army prior to being commissioned in the rank of second lieutenant as a Signal Corps officer in August 2001.  He was promoted to the rank of captain and remains on active duty in the Regular Army.

3.  The applicant provides a copy of documentation of an Army Regulation 15-6 investigation.  This documentation contains, in part, the investigating officer's appointment; investigation guidance documents; sworn statements; and a memorandum for record, subject:  Department of the Army 15-6 Investigation Findings and Recommendations, dated 27 September 2006.  The investigating officer indicated in his findings that the allegations that the applicant sexually harassed Specialist B____ verbally were substantiated.  He indicated the applicant created a hostile work environment for Specialist B____ in that he attempted to engage in an inappropriate relationship with her.

4.  A memorandum from his brigade commander, dated 1 October 2006, subject:  Notification of Potential Adverse Administrative Action, notified him that the brigade commander was requesting that he be relieved for cause from his present position under the provisions of Army Regulation 15-6, paragraph 1-8, and Army Regulation 600-20, paragraph 2-17a.  In this memorandum the brigade commander indicated he had reviewed a report of the proceedings by the investigating officer, dated 28 September 2006, into the facts and circumstances surrounding allegations of sexual harassment and an attempted inappropriate relationship made against him by Specialist B____.  He added that the investigating officer substantiated the allegations against the applicant.  He further stated the investigating officer found both direct evidence and circumstantial evidence that the applicant outwardly sexually harassed Specialist B____ and created a hostile work environment for her.

5.  The applicant received an OER for the period 21 May 2006 through 31 October 2006 which is filed in the performance portion of his OMPF.  Part V (Performance and Potential Evaluation) indicates the applicant was evaluated as not fulfilling Army requirements for Part IVa5 (Army Values – Respect) and was removed from his position as the brigade public affairs officer.  It further indicates he was directed to be relieved for cause for sexually harassing a female subordinate by creating a hostile work environment.

6.  A legal review memorandum, dated 28 September 2006, indicates the investigation was legally sufficient and there was sufficient evidence to support the findings.

7.  The applicant provided a memorandum for record, dated 2 April 2007, subject:  Further Explanation of My Army Regulation 15-6 Findings on [Applicant].  The investigating officer wrote in this memorandum that, in effect, the investigation was a bit overwhelming for him at the time and that if he were doing this investigation over again he would seriously stress to the applicant that he should make a statement telling his side of the story.  He further stated he believed he would not have found the allegations substantiated if the applicant had provided a statement and that he doesn't believe the applicant attempted to engage in a sexual relationship with Specialist B____.

8.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies for completing evaluation reports.  Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in Department of the Army Pamphlet 623-3 (ERS).  ERS identifies Soldiers who are best qualified for promotion and assignments to positions of greater responsibility.  ERS also identifies Soldiers who will be kept on active duty, be retained in grade, or eliminated from the service.  The primary function of ERS is to provide information to Headquarters, Department of the Army, for use in making personnel management decisions.

9.  Paragraph 6-7 of Army Regulation 623-3 states that an appeal must be supported by substantiating evidence, that is, the burden of proof in an appeal of an OER rests with the applicant.  An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered.  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.

10.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  Documents will not be obliterated or moved from the performance portion unless directed by an authority authorized to correct or move documents filed in the performance portion.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The findings and recommendations of the investigation indicate allegations against the applicant were substantiated during the rating period of the OER in question.

2.  It is easy for the investigating officer to say that had things been different he may have found the allegations against the applicant to be unsubstantiated.  However, retrospective statements are generally not as reliable or accurate as those made at the time of the event in question.

3.  There is insufficient evidence 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 transfer of the contested OER.  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.  Therefore, there is no basis for transfer of his OER to the restricted portion of his OMPF.

4.  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:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined 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)                                         AR20100026693



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ABCMR Record of Proceedings (cont)                                         AR20100026693



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