IN THE CASE OF:	  

		BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20110004182 


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.  removal of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 28 January 2007 through 31 October 2007 from his official military personnel file (OMPF) or in the alternative, removal from this report of all references to the relief-for-cause, the reasons for the relief, and the incident that resulted in his relief.

	b.  deletion of the inaccurate statements the rater and senior rater (SR) added on the third draft 9 months after the first draft.  If after deleting these comments the report no longer meets the requirements of a relief-for-cause OER, then all references to the relief should be deleted.

	c.   that if the report is removed or portions are edited out, he would like to be reconsidered for promotion retroactive to January 2010.

2.  The applicant states the injustice is the relief-for-cause OER he received for failing to obey a lawful order because he was not present when the order was given and it was not later conveyed to him.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states the senior rater's comments on Performance/Potential in Part VIIc are misleading and untrue.

	a.  The SR stated he relieved the applicant for failing to follow direct orders.  The evidence does not show the applicant failed to obey a direct verbal order that he received from the senior rater to implement a by-serial number tracking system for equipment.

	b.  The comment "Inspections by several external agencies revealed accountability and documentation challenges that could have resulted in the loss of sensitive items" is an attempt to blame the applicant for the loss by theft of
36 night vision goggles (NVGs) during the rating period.  The results of three separate investigations prove this comment false.

2.  Counsel states the OER is unjust because a reasonable person with knowledge of the facts would believe that after the rater was named as a subject in a criminal investigation into the theft of the 36 NVGs conducted by the military police, she was unable to render an objective evaluation of the applicant and she should have been disqualified from acting as rater.

3.  The SR and rater submitted three versions of the report to the applicant for signature and the two versions submitted to Headquarters, Department of the Army (HQDA) for filing indicate the version HQDA accepted and published in the applicant's file did not reflect their true and objective assessment of the performance of the applicant during the rating period.  Instead, after initially providing their true and objective assessment, the SR and rater added negative comments in the third version only so the report would meet the requirements of a relief-for-cause OER.  As shown in other sections of this appeal, parts of the SR's comments added to meet the requirements of a relief-for-cause OER are misleading and untrue.  The addition of the negative comments 9 months after the first draft of the report denied the applicant the ability to effectively exercise his due process rights outlined in Army Regulation 623-3 (Evaluation Reporting System).

4.  The applicant was relieved on 28 August 2007 after the theft of 36 NVGs sometime during the period 16-21 August 2007.  He was on authorized leave from 30 July 2007 to 16 August 2007.  The period 17 August 2007 through 
20 August 2007 was a training holiday, so he returned to work on the morning of 21 August 2007.  

5.  On 30 July 2007, while he was on leave, his SR issued a verbal order to those present during his walk-through that by the end of that day the section would put in place a manual tracking system designed to account for all equipment by serial number.  The applicant states that while on leave he spoke with his section noncommissioned officer in charge (NCOIC) and he said nothing 


about the order to implement a manual tracking system.  He also saw his rater and NCOIC at a retirement ceremony and neither of them mentioned the order to him.  When he returned to work on 21 August 2007 he discovered the shop had been burglarized.  He initially reported to his rater that 12 NVGs were stolen but later that day he updated his report to 36 stolen NVGs.

6.  The SR's Memorandum for Relief discusses the applicant's failure to follow his 30 July 2007 order to implement a by-serial number tracking system as the reason for the relief-for-cause.  He mentioned a lack of enthusiasm and poor attitude when dealing with the Brigade Tiger Team after the theft of NVGs as another reason for the relief.  However, the SR mentioned only a failure to follow direct orders in the OER and he did not mention the lack of cooperation with the Brigade Tiger Team.  Therefore, the SR's comments in the OER indicate the relief-for-cause was because of the failure to comply with the direct order to implement the by-serial number tracking system.

7.  A criminal investigation into the theft of the NVGs began on 21 August 2007.  The investigating officer found the applicant failed to adequately meet his responsibility to ensure basic security measures were in place and to follow proper accountability and status procedures.  The investigating officer refuted the negative comment of the SR when he concluded that the procedural deficiencies did not cause the loss of the NVGs while the security deficiencies enabled easier access to the NVGs.  The senior rater did not cite physical security deficiencies as a reason for the relief or in his comments.  On 31 January 2008, the applicant's rater is listed as a subject in the theft of the NVGs in the investigation.

8.  Around November 2007, the applicant signed the first version of the relief-for-cause OER.  A week later, he signed a second version of the OER.  This version was accepted by HQDA and carried as complete on 2 January 2008.  Later, on 
18 January 2008, HQDA rejected the second version because it did not identify who directed the relief.  The applicant was transferred in February 2008 and deployed to Afghanistan until July 2008.  When he returned he was given a third version of the OER to sign with new negative comments from the rater and SR.  Seeing the new negative comments he refused to sign the report.  In February 2009, liability for the NVGs was assessed against the applicant.  He appealed this assessment.  In October 2009, he was relieved of financial liability for the loss of the NVGs.

9.  In August 2009, the applicant appealed the OER.  The Army Special Review Board (ASRB) denied his appeal in May 2010.  The ASRB discounts the third party statements the applicant submitted with his appeal because none of the 


parties were in a position to fully understand or appreciate the expectations of the rating officials.  If the ASRB is saying that a rating official may give a direct verbal order and expect a subordinate who was not present to comply, such an expectation is clearly unreasonable unless it can be shown that the order was in fact conveyed to the subordinate.  The rater does not assert as much in the report or in his Memorandum for Relief.  The rater's comments in Part VIIc and the Memorandum for Relief seem carefully crafted to suggest the applicant actually received the order without stating so.  In this respect the rater's comments are misleading.  The record only shows the senior rater gave a direct verbal order during a walk-through of the shop on 30 July 2007 without detailing who was present.  Whether the applicant was present is left for the reader of the report and Memorandum for Relief to infer.  The statement of the applicant that he was not present on 30 July is therefore relevant despite it being his own statement.  No one is in a better position than the applicant to know when he was on leave.

10.  That reliability of the applicant's statement is supported by the statement of SFC H--- who stated in one statement that the applicant was on leave on 30 July 2007 and who in a second statement confirmed the applicant's assertion that he came in off leave to attend a reenlistment ceremony.  The ASRB erred when it dismissed the statements of SFC H--- because he was not in a position to fully understand or appreciate the expectations of the rating officials.  As the NCOIC of the section, SFC H--- was in a position to know if the applicant was present when the senior rater gave his direct verbal order and his statements are entitled to consideration to rebut the senior rater's comments.

11.  The ASRB dismissed the issue that the applicant's rater should have been disqualified because at one point she was a suspect in the theft of the NVGs by stating there is no evidence that the rater was charged with stealing the NVGs or that she was relieved of her duties.  To the contrary, the rater was titled as a subject in an investigation into the NVG theft.  Even though no Uniform Code of Military Justice (UCMJ) action was taken against the rater, law enforcement investigators determined that enough evidence existed to warrant creating a record for the files of the Criminal Records Center that is retrievable under her name and that could affect her career.

12.  The final report did not reflect the objective and comprehensive opinion of the rater at the time of the relief.  In the applicant's appeal, he showed that the final OER accepted by HQDA did not represent the considered opinions and objective judgment of the rating officials at the time of preparation of the original report but reflected efforts to ensure that the OER complied with the 


requirements for a relief-for-cause OER.  These new comments substantially changed the report and the delay in adding them prejudiced the applicant.

13.  The ASRB stated that draft reports are merely working copies of the OER until the OER becomes final and a part of the Soldier's OMPF.  In this case two reports the ASRB deemed to be drafts were completed by the SR, rater, and the applicant.  Two reports were actually submitted to HQDA before the third one was posted to the applicant's record.  HQDA rejected the second version because it did not report who directed the relief.  The final version that was accepted and posted includes new negative comments added by the SR and rater 9 months later and two drafts after they made their original comments.  Given the experience level of the reviewer and SR and the staff they had  to advise on OER preparation, the reasoning of the ASRB that reports are merely drafts until accepted by HQDA goes against logic and reason.

14.  When the applicant read and signed the first two versions he saw reports he could accept.  He saw no reason to submit comments, prepare for an appeal, or request a Commander's Inquiry.  In the first version, despite the theft of the NVGs, the rater marked the second box of Part Va "Satisfactory Performance, Promote."  The SR placed the applicant's promotion potential in the second category as "Fully Qualified."  These entries would seem to reflect the considered opinions and objective judgment of the rating officials at the time of preparation given their signatures on the documents and the fact they submitted them to the applicant for his signature.

15.  The differences between the first and second versions are significant because without changing any comments, his evaluation was downgraded by the rater to "Unsatisfactory Performance, Do Not Promote" and by the SR to "Do Not Promote."  Clearly, the same comments would not support such different evaluations.  However, despite the SR's rank and years of experience and the support of his S-1 and legal advisor, apparently no one realized this and the report was completed and submitted, through the reviewer, to DA on 
2 January 2008.  That the rating officials kept the same comments as in the first version, shows that these comments truly reflected their considered opinions and objective judgment at the time of preparation.

16.  If the applicant had seen in November 2007 the comments the SR and rater added to the August 2008 version, he would have submitted comments under the referral procedures, begun preparing for his appeal, and requested a Commander's Inquiry.  By August 2008, witnesses had departed or forgot details and documentary evidence was lost or beyond the reach of the applicant so that exercising his due process right to request a Commander's Inquiry seemed futile.  


Without having the experience of his Brigade and Battalion level commanders and their attendant S-1 and legal advisors, the applicant readily saw that the first two versions of the report were substantively inconsistent.  He signed them expecting to have a good chance on appeal.  When HQDA returned the report, the rating officials created a report that could survive appeal.  Therefore, the policy cited by the ASRB under which HQDA deems a completed report a "draft" that it can return to experienced rating officials with staff support for rewriting until it is bullet-proof against appeal was fundamentally unfair.

17.  Counsel provides 12 enclosures outlined in his 12-page statement, dated 
25 February 2011

CONSIDERATION OF EVIDENCE:

1.  Having prior active enlisted service in the Regular Army, the applicant was appointed a Warrant Officer One on 18 February 2005 and he entered active duty.  He was promoted to Chief Warrant Officer Two on 18 February 2007.

2.  A Memorandum for Relief, dated 28 August 2007, shows the applicant was relieved of his position as the Communications and Electronics (C&E) Technician for the 317th Maintenance Company.  The memorandum stated "You will receive a relief for cause evaluation report."  The Battalion Commander cited the following reasons for the action:

	a.  On 30 July 2007, he conducted an initial walk through of the company area and discovered a serious lack of accountability regarding sensitive items stored in the area.  He gave a direct verbal order that by the end of the day, the section would put in place a manual tracking system designed to account for all equipment by serial number.  He also ordered there would be a 100% sensitive item inventory conducted daily at the end of operations to ensure no loss of equipment.

	b.  On 21 August 2007, he was informed there had been a theft in the C&E shop of 36 NVGs.  Upon further discussion with the applicant and other leaders it was again determined that his previous order of instituting a by-serial number tracking system had not been emplaced.  He reiterated his order to all present that he wanted this accountability procedure put in place immediately.

	c.  On 24 August 2007, during the visit of the Brigade Commander, he again asked to see the by-serial number tracking system that he had twice ordered to implement.  The applicant and his personnel could not produce this system.


	d.  On 28 August 2007, he received word that the applicant hindered the efforts of the Brigade Tiger Team through his lack of enthusiasm and poor attitude as they attempted to assist in identifying deficiencies and propose corrective actions for his section.

3.  The contested OER is a 9-month relief-for-cause OER covering the period 
28 January 2007 through 31 October 2007.  In Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His Potential for Promotion), the rater placed an "X" in the "Other" box and placed the following comments in Part Vb:

	"[The applicant] has accomplished all assigned tasks to standard.  As a direct result of his interpersonal skills, the morale within the section was high.  He ensured the successful completion of over 1,200 Field and Sustainment Level job orders.  As the Company TMDE OIC, [the appellant] identified that only 50 pieces were enrolled into the TMDE program.  He identified that 450 LIN's required calibration.  He enrolled all equipment and developed an aggressive plan to ensure compliance.  In the absence of an Armament Technician, [the applicant] developed and executed a plan that ensured all Small Arms Gauge sets were calibrated prior to the section becoming out of tolerance.  His building skills ensured subordinate leaders were developed for future success.  He also ensured all of his Soldiers were trained and safely executed their duties.  He was accountable and responsible for 16.5 million dollars worth of equipment.  His operational readiness rate for organizational equipment was 85%.  Although [the applicant] possesses great will, enthusiasm, and the right attitude he did not apply regulatory administrative procedures in the maintenance section and as a result, his job performance became lax and customer equipment was improperly accounted for.  Lack of technical assistance in parts research resulted in increased customer wait time."

4.  In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the SR placed an "X" in the "Other" box and placed the following comments in Part VIIc:

	"[The appellant's] performance during this rating period can be categorized as challenging.  I as the Senior Rater removed him from his position due to serious deficiencies in day-to-day procedures of the communications and electronics section, as well as a failure to follow direct orders.  Inspections by several external agencies revealed accountability and documentation challenges that could have resulted in the loss of sensitive items.  With additional mentoring and supervision, he will undoubtedly increase his technical knowledge and can be entrusted with positions of increased responsibility.  Continue to monitor and promote upon achieving the required level of expertise."
5.  A review of the applicant's performance section of his OMPF on the interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of the contested OER.

6.  He provided two other versions of a referred 9-month relief-for-cause OER covering the period 28 January 2007 through 31 October 2007.  

7.  One version of the OER, signed by the rater on 8 November 2007, shows in Part Va, the rater placed an "X" in the "Satisfactory Performance, Promote" box and placed the following comments in Part Vb:

	"[The applicant] has accomplished all assigned tasks to standard.  As a direct result of his interpersonal skills the morale within the section was high.  His planning ensured successful completion of over 1,200 Field and Sustainment Level job orders.  As the Company TMDE OIC, [the applicant] identified that only 50 pieces were enrolled into the TMDE program.  He identified that 450 LIN's required calibration.  He enrolled all equipment and developed an aggressive plan to ensure compliance.  In the absence of an Armament Technician, [the applicant] developed and executed a plan that ensured all Small Arms Gauge sets were calibrated prior to the section becoming out of tolerance.  His building skills ensured subordinate leaders were developed for future success.  He also ensured all of his Soldiers were trained and practiced Safety at all times.  He was accountable and responsible for 16.5 Million Dollars of government property.   His operational readiness rate for organizational equipment was 85%."  

8.  In Part VIIa, the SR placed an "X" in "Fully Qualified" box and placed the following comments in Part VIIc:

	"[The applicant's] performance during this rating period can be categorized as challenging.  He was removed from his position due to serious deficiencies in day-to-day procedures of the communications and electronic section.  Inspections by several external agencies revealed accountability and documentation challenges that could have resulted in the loss of sensitive items.  With additional mentoring and supervision, he will undoubtedly increase his technical knowledge and can be entrusted with positions of increased responsibility.  Continue to monitor and promote upon achieving the required level of expertise."

9.  The other undated version of the OER shows in Part Va, the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" box and placed the following comments in Part Vb:


	"[The applicant] has accomplished all assigned tasks to standard.  As a direct result of his interpersonal skills the morale within the section was high.  His planning ensured successful completion of over 1,200 Field and Sustainment Level job orders.  As the Company TMDE OIC, [the appellant] identified that only 50 pieces were enrolled into the TMDE program.  He identified that 450 LIN's required calibration.  He enrolled all equipment and developed an aggressive plan to ensure compliance.  In the absence of an Armament Technician, [the applicant] developed and executed a plan that ensured all Small Arms Gauge sets were calibrated prior to the section becoming out of tolerance.  His building skills ensured subordinate leaders were developed for future success.  He also ensured all of his Soldiers were trained and practiced safety at all times.  He was accountable and responsible for 16.5 million dollars of government property.   His operational readiness rate for organizational equipment was 85%."

10.  In Part VIIa, the SR placed an "X" in "Do Not Promote" box and placed the following comments in Part VIIc:

	"[The applicant's] performance during this rating period can be categorized as challenging.  He was removed from his position due to serious deficiencies in day-to-day procedures of the communications and electronic section.  Inspections by several external agencies revealed accountability and documentation challenges that could have resulted in the loss of sensitive items.  With additional mentoring and supervision, he will undoubtedly increase his technical knowledge and can be entrusted with positions of increased responsibility.  Continue to monitor and promote upon achieving the required level of expertise."

11.  In August 2009, he submitted an appeal to the ASRB requesting removal of the contested OER from his OMPF or in the alternative, replace it with one of the two different versions with various changes.  

12.  On 6 May 2010, the ASRB reviewed the applicant's case and determined the evidence presented did not clearly and convincingly establish that the presumption of regularity should not be applied to the report under consideration or that action was warranted to correct a material error, inaccuracy, or injustice.  The board determined the overall merits of this case did not warrant the relief requested.

13.  Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct; have been prepared by the properly designated rating officials; and represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Requests that an evaluation report in a Soldier’s OMPF be altered, withdrawn, or replaced with another report will not be honored.  The regulation also states that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that clearly and convincingly establishes that:

	a.  the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration and

	b.  action is warranted to correct a material error, inaccuracy, or injustice.

14.  Army Regulation 623-3, paragraph 3-58, states an OER is required when an officer or warrant officer is relieved for cause regardless of the rating period involved.  Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his/her performance of duty.

15.  Department of the Army Pamphlet 623-3 (Evaluation Reporting System), paragraph 2-13 (Relief for cause OER instructions), states if a rated officer or warrant officer is officially relieved, the following specific instructions apply to completing a relief report:

	a.  The potential evaluation in Part Va of the DA Form 67–9 (OER) must reflect "Do not promote" or "Other."  A "Do not promote" recommendation is consistent with relief action and does not need further explanation.  However, raters who want to make some other recommendation will check "Other" and will explain their recommendation and reasons in view of the action to relieve.

	b.  The rating restriction in (a), above, does not apply to a rater who has not directed the relief and does not agree with the relief. However, they must state their non-concurrence in the proper narrative portions of the OER.

	c.  The report will identify the rating official who directed the relief.  This official will clearly explain the reason for relief in his or her narrative portion of the DA Form 67-9.

	d.  If the relief is directed by someone not in the designated rating chain, the official directing the relief will describe the reasons for the relief in an enclosure to the report.

	e.  Paragraph 2-20 states special rules apply when a rating chain member is unable to render an evaluation of the rated Soldier.  These situations occur when a rating official dies, is declared missing, is relieved, or becomes mentally or physically incapacitated to such an extent that they are unable to submit an accurate evaluation.  When a rating official is officially relieved or determined to be incapacitated, they will not be permitted to evaluate their subordinates.

16.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the military personnel 
records jacket, the career management individual file, and Army personnel qualification records.  Paragraph 2-4 states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records, Department of the Army Suitability Evaluation Board, Army Appeals Board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, OMPF custodian when documents have been improperly filed, Total Army Personnel Command as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center, and Chief of the Appeals Branch of the National Guard Personnel Center.

17.  Army Regulation 600-8-104, Table 2-1 states that an OER will be filed in the performance section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he received the relief-for-cause OER for failing to obey a lawful order to implement a by-serial number tracking system by the end of the day given by the Battalion Commander on 30 July 2007 when he was not present.  However, although the direct verbal order was given by the Battalion Commander on 30 July 2007 when apparently the applicant was not present, evidence shows the Battalion Commander spoke with the applicant on 21 August 2007 and reiterated this order.  On 24 August 2007, the Battalion Commander asked the applicant to see the by-serial number tracking system that he had twice ordered and he could not produce it.

2.  The Memorandum for Relief shows the applicant was notified on 28 August 2007 that he was relieved of his position and he would receive a relief-for-cause OER.  The SR addressed four reasons for the relief-for-cause action.

3.  Counsel provided three versions of the applicant's relief-for-cause OER.  He contends the rater and SR added negative comments in the third version only so the report would meet the requirements of a relief-for-cause OER.  

4.  It appears the first version of the relief-for-cause OER, dated 8 November 2007, was not properly prepared because Part Va did not reflect "Do not promote" or "Other" as required by the governing regulation.  It appears the second version of the relief-for-cause OER was not properly prepared because the report did not identify the rating official who directed the relief.  The third version of the relief-for-cause OER was properly completed by the rater and SR and this OER was accepted by HQDA and included in the applicant's official record.  The governing regulation states evaluation reports accepted by HQDA and included in the official record of a rated Soldier are presumed to be administratively correct; have been prepared by the properly designated rating officials; and represent the considered opinions and objective judgment of the rating officials at the time of preparation.

5.  Counsel contends the OER is unjust because the rater was named as a subject in a criminal investigation into the theft of the 36 NVGs conducted by the military police and she was unable to render an objective evaluation of the applicant and should have been disqualified from acting as rater.  However, there is no evidence she was relieved of her official duties.  Therefore, there was no regulatory requirement to remove her from the rating chain.

6.  Counsel contends the senior rater's comments in Part Vllc are misleading and untrue.  However, the applicant has not provided sufficient evidence to show the comments on the OER accepted by HQDA did not represent the considered opinion and the objective judgment of the SR at the time of preparation.  

7.  The contested OER was prepared by the properly-designated rating officials and is properly filed in the applicant's OMPF in accordance with the governing regulation.  There is no evidence it was improperly prepared or filed.

8.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110004182



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ABCMR Record of Proceedings (cont)                                         AR20110004182



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