IN THE CASE OF:	  .

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110006481 


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:

The applicant defers his request to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* removal of the applicant's DA Form 67-9 (Officer Evaluation Report (OER)) covering the rated period 8 January 2007 through 17 August 2007 (hereafter referred to as the contested OER) from his records
* reinstatement to the Fiscal Year 2007 (FY07) Major (MAJ) Army Promotion List (APL), should the Board approve his request for removal of the contested OER or referral to a special selection board (SSB) for promotion consideration to MAJ

2.  Counsel's 6-page supplemental statement provides a background of the contested OER and argues the following points:

	a.  There is one material error associated with the applicant's petition; specifically, a Board of Inquiry determined that the underlying conduct supporting his general officer memorandum of reprimand (GOMOR) and contested OER was not supported by a preponderance of the evidence.

	b.  On 22 August 2007, the applicant received a GOMOR and he received the contested OER on 31 October 2007.  On 15 July 2008, he was removed from the FY07 APL to MAJ.  On 23 July 2008, a Board of Inquiry found that he did not make an inappropriate comment to a female Soldier.

	c.  On 13 July 2009, the Department of the Army Suitability Evaluation Board (DASEB) transferred his GOMOR to the restricted section of his official military personnel file (OMPF).  On 24 July 2009, an Officer Special Review Board (OSRB) denied his request for removal of the contested OER from his OMPF.

	d.  On 19 October 2009, the applicant requested reconsideration of the OSRB's previous denial.  On 11 May 2010, the OSRB determined the applicant had not submitted any new evidence and administratively returned the applicant's request without action.

	e.  Counsel addressed the relevant portions of the contested OER.

	f.  On 11 April 2007, an investigating officer (IO) was appointed under Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) to investigate several allegations relevant to the contested OER.  The investigation did not produce sufficient evidence to support the comment [contained within the contested OER] that the applicant made an inappropriate comment to a female Soldier.

	g.  As a result of testimony provided during a Board of Inquiry, the board found that the applicant did not make an inappropriate comment to a female subordinate.

	h.  Given the lack of substantiation in the Army Regulation 15-6 investigation and the findings of the Board of Inquiry, it was thoroughly inappropriate and highly prejudicial to note the applicant had made an inappropriate comment to a female Soldier.

3.  Counsel provides:

* the contested OER
* DASEB Docket Number AR20090006776, dated 18 June 2009
* Army Special Review Boards memorandum, dated 11 May 2010
* an unsigned memorandum for record from the applicant, dated 15 March 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as a captain (CPT) in the Regular Army.  After previous enlisted service, he was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant and he executed an oath of office on 15 May 1998.  On 30 November 1999, he was promoted to first lieutenant and he was promoted to CPT on 1 December 2001.

2.  On or about 11 April 2007, an IO was appointed under Army Regulation 15-6 to investigate several allegations that arose from a previous Command Climate Survey.  The investigation findings were not provided for review and are not contained within the applicant's OMPF.

3.  On 17 August 2007, the applicant was reprimanded by the Commanding General, U.S. Army Recruiting Command, Fort Knox, Kentucky, for failing to treat subordinates with dignity and respect by repeatedly threatening recruiters by making demeaning comments and making an inappropriate comment to a female subordinate.  On 25 September 2007, the imposing authority directed filing the GOMOR in the performance section of his OMPF.

4.  On 31 October 2007, he received a relief-for-cause OER for his performance of duty as a company commander.  This report covered 4 months of rated time between 8 January 2007 and 17 August 2007.  His rater was the battalion commander, a lieutenant colonel, and his senior rater (SR) was the brigade commander, a colonel.  The contested OER shows his rater and SR signed the report on 26 and 30 October 2007, respectively.  It also shows the following entries:

	a.  In part IV (Performance Evaluation – Professionalism (Character)) the following entries are noted:

* in part IVa (Army Values) the rater placed an "X" in the "No" block for "Honor" and "Respect"
* in part IVb (Leader Attributes/Skills/Actions), subsection b.2 (Skills – (Competence)), the rater placed an "X" in the "No" block for "Interpersonal"
* in part IVb, subsection b.3 (Actions (Leadership) – Influencing), the rater placed an "X" in the "No" block for "Motivating"

	b.  In part V (Performance and Potential Evaluation (Rater)) the rater placed an "X" in the "Unsatisfactory Performance – Do Not Promote" block and entered the following remarks in Part V:

		(1)  In part Vb the rater entered:  "[Applicant's] performance during the rating period was characterized by repeated threatening of recruiters, a failing to treat subordinates with dignity and respect, making demeaning comments, and, in one instance, making an inappropriate comment to a female subordinate.  Accordingly, his relief as commander of the Libertyville Recruiting Company was directed by the Commanding General, U.S. Army Recruiting Command (USAREC).  In addition to a relief from command, [applicant's] misconduct resulted in a written reprimand from the commanding general.  [Applicant] has remained motivated and has worked to make positive individual progress in addressing his issues, and I believe he can still be of service to our Army, however, in a limited capacity and not commanding Soldiers.  His actions have raised serious questions concerning his ability to hold future positions of trust and responsibility in our quality Army.  [Applicant] does demonstrate the technical skills required to accomplish projects appropriate with his grade."

		(2)  In part Vc the rater entered: "Limited potential for promotion.  This officer no longer demonstrates the leadership capabilities necessary to command.  Recommend he be assigned to duties where he is not commanding Soldiers."

	c.  In part VII (SR), the SR placed an "X" in the "Do Not Promote" block and entered the following remarks in part VIIc:  "The Commanding General has directed the relief of [applicant] for multiple instances of misconduct.  This misconduct has caused him to be ineffective as a commander and has prevented him from establishing a command climate necessary for success.  He has not demonstrated the maturity and judgment I would expect from a commissioned officer with his experience level or time in service.  [Applicant] has repeated mistakes that have caused the entire chain of command to question his ability to lead Soldiers.  Through the use of threats, inappropriate and demeaning comments, and through his actions with subordinates, [applicant] violated the core Army value of respect.  He does not possess the leadership qualities required to command Soldiers in today's Army.  His potential for continued military service is extremely limited.  Do not promote."

5.  The contested OER was referred to the applicant for acknowledgement.  The OER indicates he did not provide any comments.

6.  The applicant was selected for promotion to MAJ by the FY07 MAJ APL Selection Board.  On 14 November 2007, as a result of his previously-received GOMOR, he was referred to a promotion review board (PRB).  On 29 February 2008, he was notified that his referral would be resubmitted, to include the contested OER.  During the period 8-12 May 2008, he was considered by the PRB.

7.  On 13 August 2008, the Director of Military Personnel Management, Office of the Deputy Chief of Staff, G-1, submitted a staffing memorandum to obtain a secretarial decision on the PRB's recommendation.  After a legal review by the Office of the Judge Advocate General for legal sufficiency, the staffing and approval record shows the following:

* Deputy Chief of Staff, G-1, recommended removal
* Assistant Secretary of the Army for Manpower and Reserve Affairs recommended removal
* Vice Chief of Staff of the Army recommended removal
* Chief of Staff of the Army recommended removal

8.  On 13 August 2008, the Secretary of the Army approved the PRB results and ordered the applicant removed from the FY07 MAJ APL.

9.  On 22 January 2008, he was referred to a Board of Inquiry to determine whether he should be retained within USAREC.  The Board of Inquiry convened on 23 July 2008 and adjourned on 24 July 2008.

	a.  The Board of Inquiry Verbatim Findings and Recommendations state:  "The board finds that a preponderance of the evidence establishes that you:  Did fail to treat your subordinates with dignity and respect by repeatedly threatening and making demeaning comments to them.  Did not make an inappropriate comment to a female subordinate.  You did not exercise the appropriate level of judgment that's expected of an officer (Board added finding)."

	b.  The Board of Inquiry Recommendations state, "In view of the findings, the board recommends that you be retained in the Army and reassigned from Recruiting.  The board also recommends retention in the Army with no promotion to MAJ (Board added recommendation)."

10.  On 18 June 2009, the OSRB considered the applicant's request for an appeal of the contested OER.  On 24 July 2009, he was notified by U.S. Army Human Resources Command of the OSRB's denial of his OER appeal.  On 19 October 2009, the applicant petitioned the OSRB for reconsideration of his OER appeal.  On 11 May 2010, the OSRB administratively closed and returned his request without action, stating that his request did not contain any new evidence which would establish a basis to grant removal of the contested OER.

11.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System which includes the DA Form 67-9.  It also provides guidance regarding redress programs, including commander's inquiries and appeals.

	a.  Paragraph 1-9 states 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 other directives.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

	b.  Paragraph 3-2 defines the role of the rating officials.  Rating officials have the responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest, fair evaluations of the Soldiers under their supervision.  On one hand, they must give full credit to the rated individual for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, DA selection boards, and career managers can make intelligent decisions.

	c.  Paragraph 3-23 states that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to Headquarters, Department of the Army (HQDA).  Any verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's use of verified derogatory information.

	d.  Paragraph 3-34 stipulates that any report with negative comments in Part Vb, Vc, VI, or VIIc will be referred to the rated officer by the SR for acknowledgment and comment before it is sent to HQDA.

	e.  Paragraph 3-36a states that the SR will place an "X" in the appropriate box in part IId of the completed report.  The report will then be given to the rated Soldier for signature and placement of an "X" in the appropriate box in part IId.

	f.  Paragraph 3-36b stipulates that the rated Soldier may comment if he or she believes the rating or remarks are incorrect.  The comments will be factual, concise, and limited to matters directly related to the evaluation on the OER/academic evaluation report (AER); rating officials may not rebut rated Soldier's referral comments.  Extraneous or voluminous material, material already contained in the Soldier's file, and enclosures or attachments are not normally in the rated Soldier's best interest; and therefore they will be avoided.  Any enclosures or attachments to rebuttal comments will be withdrawn and returned to the rated Soldier when the OER/AER is forwarded to HQDA.

	g.  Paragraph 3-36c stipulates that the rated Soldier's comments do not constitute an appeal.  Appeals are processed separately as outlined in chapter 6. 
Likewise, the rated Soldier's comments do not constitute a request for a commander's inquiry.  Such a request will be submitted separately.

	h.  Paragraph 3-36d stipulates that if the SR decides the comments provide significant new facts about the rated Soldier's performance and that they could affect the rated Soldier's evaluation, the SR may refer them to the other rating officials.  They, in turn, may reconsider their evaluations.  The SR or rater will not pressure or influence them.  Any rating official who elects to raise his or her evaluation of the rated Solder as a result of this action may do so.  However, the evaluation may not be lowered because of the rated Soldier's comments.  If the evaluation report is changed but still requires referral, the report will again be referred to the rated Soldier for acknowledgment and new comments.  Only the latest acknowledgment and comments (if submitted) will be forwarded to HQDA.

	i.  Paragraph 3-36e stipulates that when the rated officer is unavailable to sign an evaluation report for any reason and the report must be referred, it will be referred in writing to the rated officer.  The rated officer will be given a reasonable suspense to respond.

	j.  Paragraph 6-7 states an evaluation report accepted by HQDA and included in the official record of an officer is presumed to:

		(1)  be administratively correct,

		(2)  have been prepared by the properly designated rating officials, and

		(3)  represent the considered opinions and objective judgment of the rating officials at the time of preparation.

	k.  Paragraph 6-11 provides guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It states the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 6-7 should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

12.  Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  This regulation states the Army policy is to ensure that unsubstantiated unfavorable information is not placed in personnel files or used for personnel decisions.  Additional objectives are to protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility and to provide a means to remedy injustices if they occur.  Paragraph 3-2 states that except as indicated in paragraph 3-3, unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement or to decline, in writing, to make such a statement.  This statement may include evidence that rebuts, explains, or mitigates the unfavorable information.  The issuing authority should fully affirm and document unfavorable information to be considered for inclusion in official personnel files.

13.  Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the Active Duty List.

	a.  Paragraph 1-33 states the Secretary of the Army will provide guidance and instructions in a memorandum of instructions to the promotion selection board.  Additionally, paragraphs 1-33c (4) and (5) state the following items, which are not part of the OMPF of an officer being considered for promotion, will not be given to a board:  memorandums that criticize or reflect on the character, conduct, or motives of any officer under consideration by the board unless otherwise authorized by this regulation and/or memorandums forwarded directly to the board by other parties on behalf of any officer except when provided as an enclosure to a memorandum from the officer being considered.

	b.  Chapter 8 of Army Regulation 600-8-29 states that HQDA will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade.

		(1)  An officer may be referred to a PRB for a number of reasons, to include when derogatory information is received by HQDA but not filed in the OMPF, if the referral authority finds that the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation.  An officer may be referred to a PRB for the following reasons (the list is not exclusive):  a referred OER; punishment under Article 15, Uniform Code of Military Justice (whether filed in the restricted or performance section of the OMPF); any court-martial conviction; a memorandum of reprimand placed in the OMPF; adverse documentation filed in the OMPF; initiation of elimination action; or other derogatory information received by HQDA but not filed in the OMPF if the referral authority finds that the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation.

		(2)  The Deputy Chief of Staff, G-1, or a designee (normally the Director of Military Personnel Management) is authorized to refer cases to a PRB except those involving promotion to or within general officer grades.  Before the PRB convenes, the officer under review will be informed by memorandum of the reason for the action and provided a copy of any information that will be considered by the board.

		(3)  The officer will be afforded a reasonable opportunity to submit comments on that information to the PRB.  The PRB's recommendation is only advisory to the Secretary of the Army.  In cases involving promotions to or within general officer grades, the board report will be sent through the Chief of Staff of the Army to the Secretary of the Army who will forward the report with an appropriate recommendation through the Secretary of Defense to the President.  An officer who is removed from a promotion list continues to be eligible for consideration for promotion.  Officers considered by a PRB will be informed of the results in writing through their chain of command.

		(4)  An SSB may be convened to consider or reconsider commissioned officers for promotion when HQDA discovers one or more of the following:  an officer was not considered from in or above the promotion zone by a regularly-scheduled board because of administrative error, including officers who missed a regularly-scheduled board while on the temporary disability list and who have since been placed on the Active Duty List (SSB required), the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary), or the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

		(5)  An officer will not be considered or reconsidered for promotion by an SSB when the officer is pending removal from a promotion or recommended list and the removal action was not finalized by the Secretary of the Army 30 days before the next selection board convened to consider officers of his or her grade. The officer will be considered by the next regularly-scheduled selection board.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends that since a Board of Inquiry cleared the applicant of any inappropriate comments to a female subordinate, it was inappropriate for the rater or SR to state the applicant made such a comment.  Accordingly, counsel contends the contested OER should be removed from the applicant's records.

2.  The evidence of record shows the applicant was reprimanded for misconduct. 
His verbal abuse and treatment of subordinate Soldiers, not just an inappropriate comment to a female subordinate, caused his chain of command to lose confidence in his ability to lead Soldiers and resulted in his relief for cause.

3.  The contested OER contains rater and SR comments alluding to multiple instances of misconduct, including a reference to an inappropriate comment to a female subordinate, which was unfounded by the Board of Inquiry.  One unsubstantiated comment on the part of the rater is not grounds to invalidate the entire OER; however, it would be appropriate to strike the unfounded comment from the rater's narrative.

4.  Counsel further contends the applicant should be reinstated on the FY07 MAJ APL or referred to an SSB for promotion consideration to MAJ should the Board grant his request for removal of the contested OER.  The evidence of record does not support removal of the contested OER.  Furthermore, the PRB did not base its decision to remove him from the MAJ APL solely on the contested OER, but rather on his total record.  He is not entitled to reinstatement on the FY07 MAJ APL nor is he entitled to an SSB.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_____X___  ____X___  ____X___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DA Form 67-9 covering the rated period 8 January 2007 through 17 August 2007 to strike from the rater's narrative in part Vb, the phrase, "and in one instance, making an inappropriate comment to a female subordinate."

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the removal of the contested OER from his OMPF.



      ______________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)                                         AR20090007349



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ABCMR Record of Proceedings (cont)                                         AR20110006481



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