IN THE CASE OF:	  

		BOARD DATE:	    10 May 2011

		DOCKET NUMBER:  AR20110004092 


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 that the commander's inquiry (CI) completed on 28 January 2007 pertaining to his officer evaluation report (OER) ending in June 2004 be filed in his official records.

2.  The applicant states, in effect, that he desires the CI to be filed in his official military personnel file (OMPF) for clarification purposes.  He goes on to state his record is unjust because he has a due process right to have the favorable CI filed with his OER for clarification of the OER.  He also states the U.S. Army Human Resources Command's (HRC) failure to file the CI violates his right to due process.  He continues by stating that HRC refused to file the CI because it exceeded the 120 days required by regulation.  However, he requested a CI in August and December 2004, but it was not completed until January 2007 and it found in his favor. 

3.  The applicant provides:

* a memorandum from HRC denying the filing of the applicant's CI
* a copy of the CI, dated 28 January 2007

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving as a U.S. Army Reserve (USAR) Judge Advocate General (JAG) captain when he was ordered to active duty to serve as an international law officer assigned to the 1st Infantry Division in Iraq.  He served in Iraq from 2 February 2004 to 16 October 2004.

2.  On 1 July 2004, he received a change-of-rater OER covering the period 1 December 2003 through 22 June 2004.  The report was a referred report and the applicant refused to sign it.  He also failed to respond to the referred report.  His OER shows he was assigned to the 415th Civil Affairs Battalion, Kalamazoo, Michigan, with duty in Iraq.

3.  The Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation indicated the applicant submitted his initial request for a CI in August 2004 to the 350th Civil Affairs Command (CACOM) because CACOM was the lead CA element in theater and because the applicant's [senior] commander was the senior rater.  Subsequent requests were made to U.S. Army Special Operations Command (USASOC), U.S. Army Civil Affairs and Psychological Operations Command (USACAPOC), Senator F___, and the Department of the Army Inspector General (DAIG).

4.  On 8 December 2006, a colonel assigned to the 308th Civil Affairs Brigade in Homewood, Illinois, was appointed to conduct an informal investigation under the provisions of Army Regulation 15-6 regarding allegations by the applicant concerning the referred OER.  This investigation was conducted by the applicant's USAR chain of command vice his active duty chain of command.

5.  The investigation was completed on 28 January 2007 and the investigating officer recommended that the investigation be adopted as a commander's inquiry and that the referred OER be removed from the applicant's OMPF.  The commander's inquiry consisted of two pages signed by the brigade commander.

6.  On 7 January 2011, a memorandum was dispatched to the applicant from HRC which informed him that Army Regulation 623-3 (Evaluation Reporting System) allowed CI's to be accepted up to 120 days after an OER had been signed by the reviewer and the applicant's CI did not meet the requirements of the regulation and would not be filed in his OMPF.

7.  Army Regulation 623-105 (Officer Evaluation Reporting System) established the policies and procedures for the OER system.  The regulation in effect at the time provided, in regard to CI's, that commanders are required to look into alleged errors, injustices, and illegalities in OERs.  The primary purpose of the CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the OER is accepted at Headquarters, 


Department of the Army (HQDA).  To ensure the availability of pertinent data and timely completion of an inquiry done after the OER in question has been accepted at HQDA, the inquiry must be conducted by either the commander at the time the OER was rendered who is still in the command position or by a subsequent commander in the position.  The results of the CI that are forwarded to HQDA will include the findings, conclusions, and recommendations in a format that could be filed with the OER in the officer's OMPF for clarification purposes and will be limited to one page.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was unjustly denied having his CI added to his records along with his referred OER has been noted and is found to lack merit.

2.  While it is unclear as to why it took so long for a CI to be conducted after the OER was rendered, the fact remains that such requests must be submitted to the chain of command above the designated rating chain and that a CI was not conducted until 3 years after the report was rendered, which was well after the regulatory 120-day requirement.

3.  Not only was the CI not conducted in a timely manner, it also was not conducted by the commander still in command or a subsequent commander in the position.

4.  Additionally, the requirement to submit the findings and recommendations of the CI in a one-page format was not complied with by the commander who authorized and approved the CI, as he submitted two pages instead of one.

5.  Accordingly, the action by HRC of not filing the CI in his OMPF was in accordance with the applicable regulation.

6.  It is also noted that the applicant is a JAG officer who should have been aware of the importance of a timely CI and the means by which to obtain a CI in a timely manner.  However, there is no evidence to show he exercised due diligence in that matter.  In fact, the evidence shows he improperly sought a CI through his USAR chain of command, not through the commander above his designated rating chain.



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)                                         AR20110004092



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110004092



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1