BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110011346 


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 the Officer Evaluation Report (OER) and all related documents for the period 24 May 1996 through 22 November 1996, hereafter referred to as the referred OER, be removed from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect:

   a.  The OER violates Army Regulation 623-105 (Officer Evaluation Evaluating System) by referencing untrue and unproven derogatory information and is substantively inaccurate.  He adds that the OER denied him due process. 

   b.  He requests that the referred OER be removed from his OMPF for the following reasons:
	
   (1)  According to Army Regulation 623-105, paragraph 3-37 no reference
will be made to unproven derogatory information; however, the rater and senior rater (SR) referenced unproven derogatory information in his OER by referring to a pending U.S. Army Criminal Investigation Command (CID) report. 

		(2)  He was denied due process because there was no pending CID investigation when they presented him his OER on 22 November 1996, because the investigation was completed on 1 November 1996. 


		(3)  He voluntarily spoke with the CID agent and was exonerated of all suspicion of criminal wrongdoing.  Although knowing the investigation was terminated, the rater falsely stated that the investigation regarding possible criminal conduct continued. 

		(4)  On 22 November 1996, he was presented the OER and he signed it; but it was not until 18 December 1996 that the SR referred the OER to him for comment.  

		(5)  When he signed the OER, he did not have the CID report, which had been completed on 1 November 1996; he was only able to obtain it through the Freedom of Information Act. 

		(6)  If he had the CID report, he would have refuted the rater's comments about his alleged lack of sound judgment, debatable integrity, and the suggestion that he had no authority to transport ammunition while on personal leave.  The failure to provide him this evidence was unfair and unjust.

		(7)  The OER casts an unwanted stigma and cloud of criminal suspicion for anyone looking at his record; this is unfair and unjust.  

		(8)  In 1996, when he received the OER, he was a senior captain who had just fulfilled an active duty commitment, successfully transferred to the U.S. Army Reserve (USAR), and he had deployed three times (once as a battalion commander).  Additionally, he had been selected for promotion to colonel.  His record prior to this OER is unblemished.

3.  He provides:

   a.  an OER for the rating period 24 May through 22 November 1996;
   
   b.  a memorandum from his SR, the Commander, Second Brigade, 3rd Infantry Division (Mechanized); 
   
   c.  acknowledgement of receipt of the referred report, dated 18 December 1996;
   
   d.  a memorandum from the Commander, U.S. Army Human Resources Command (HRC); and
   
   e.  a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)).


CONSIDERATION OF EVIDENCE:

1.  The applicant is a USAR colonel with a date of rank (DOR) and effective date of 24 August 2011.

2.  During the period 23 May 1996 through 22 November 1996, he was assigned as a captain, tank company commander.

3.  On 22 November 1996, he was relieved of his command and a Relief-for-Cause OER was initiated which covered 6 months of rated time.  His rater was a Lieutenant Colonel, Commander, 1st Battalion, 64th Armored, and his SR was a Colonel, Commander, 2nd Brigade, 3rd Infantry Division.  The OER contains the following entries:

	a.  in Part IVa(8) (Performance Evaluation - Professionalism-Professional Competence), the rater placed a "3" in the block for "Displays Sound Judgment"; 

	b.  in Part IVb(2) (Performance Evaluation - Professional Ethics), the rater states:
  
		(1)  a.  8.  Questionable judgment; and 

		(2)  b.  5.  Debatable integrity does not instill trust and confidence in superiors. 

	c.  in Part Vb (Performance and Potential Evaluation), the rater placed an "X" in the "Always Exceeded Requirements" block and in Part Vc (Comments), he entered the following comments:

He was relieved of duty as the commander of D Company, 1st Battalion, 64th Armor for lack of sound judgment, questionable integrity, and a loss of trust and confidence from his superiors.  While an investigation regarding possible criminal conduct continues, it has been decided by [applicant's] chain of command that he be relieved for cause.  The reason which created the conditions for relief occurred on 26 October 1996, when he, while signed out on leave to Oklahoma and without authority, traveled to New Jersey, in his privately owned vehicle to procure M16 ammunition and then transported that ammunition to Fort Stewart, Georgia.  

	d.  in Part Vd (This Officer's Potential for Promotion to the Next Higher Grade is), the rater placed and "X" in the "Do Not Promote" block and in Part Ve (Comment on Potential) he entered the comment:  "His potential for further service and positions of greater responsibility is questionable"; and
	e.  in Part VIIa (Potential Evaluation), the SR placed an "X" in "Below Center of Mass" and the following comments were entered in Part VIIb (Comments):

On 22 November, [the applicant] was relieved of command because of a serious integrity violation and questionable judgment.  He told his battalion commander that he was going on leave to Oklahoma to visit a friend when in fact he went to New Jersey instead to get some additional 5.56 ammunition.  He did this without proper approval from his chain of command.  An investigation is still pending by the CID to determine possible criminal conduct.  Based on his actions, I have lost confidence and trust in his ability to continue to command and lead Soldiers.  Additionally, I recommend that he separated from the Army at the earliest opportunity.  Do not promote.

4.  The rater and SR signatures are dated 25 November 1996 and 19 December 1996 respectively.  

5.  On 18 December 1996, he was provided a copy of the referred report for acknowledgement and comments.  He acknowledged receipt of the referred OER, but signed the acknowledgement stating that he "did not wish to offer a rebuttal."

6.  The subject OER was subsequently processed by Headquarters, Department of the Army (HQDA).

7.  A memorandum from the Commander, HRC, Fort Knox, KY, dated 19 October 2010, Subject:  Imposition of a Headquarters Department of the Army (HQDA) Flag, states that he was selected for promotion to colonel by the fiscal year (FY) 2010 DA Reserve Components Selection Board that convened on       8 June 2010.  The Chief, DA Promotions informed him that the Army Chief of Staff had approved a post board process of all colonel level promotions.  All CID, DA Inspector General, and the restricted portion of the integrated-Personnel Electronic Records Management System file would be screened to isolate any case in which selectees were the subject of substantive derogatory information and the General Officer Review Board (GORB) would review any adverse information identified to determine if the officer should be referred to a Promotion Review Board (PRB).

8.  The Chief, DA Promotions also informed him that his records were still undergoing the screening process and until it was completed his records would be placed in a non-promotable status.  In order to prevent any erroneous promotion actions, a DA FLAG was initiated to protect him, his family, and the Army from possible embarrassment if he would have gotten promoted and then it was necessary to revoke that promotion based on an unfavorable GORB determination.  Upon completion of the screening process he would be notified if his records were referred to the PRB.  If he were not referred to a PRB he would then be promoted providing he met all other criteria.  He was provided a copy of the FLAG, dated 19 October 2010.

9.  On 12 November 2010, he received an email from the HRC, Officer Promotions Branch, Subject:  Post Board Screening Process, informing him that the screening process of his records had been completed, it had been determined that there were no substantiating allegations against him, and he was no longer a subject of investigation.

10.  He submitted a copy of a CID Agent's Investigation Report, dated 
1 November 1996, which states that on 30 October 1996, the CID was informed that he had obtained and transported 4,900 rounds of 5.56 ammunition from his father, a battalion commander at Fort Dix, in his privately owned vehicle (POV).  However, he was thought to have been on a pass in Oklahoma.  He explained that he was on a marksmanship team qualified to draw ammunition to further Soldiers' marksmanship skills.  He also stated that he was authorized to transport ammunition in his POV and that he got it through official channels.  The report concluded that there was no criminal activity; however, the applicant may have stretched the regulation by saying he was instructing his Soldiers in marksmanship training.

11.  Paragraph 6-10 of Army Regulation 623-105 places the burden of proof on the applicant to provide clear and convincing evidence to justify deletion or amendment of an OER.

12.  Paragraph 3-57 and paragraph 6-6a of Army Regulation 623-105 state that an evaluation report accepted by HQDA and included in the official record of an officer is presumed to be administratively correct, has been prepared by the properly designated rating officials and represents the considered opinions and objective judgment of the rating officials at the time of preparation.

13.  Army Regulation 623-105, paragraph 3-27, states no reference will be made to an incomplete investigation (formal or informal) concerning an officer.  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.  If the rated officer is absolved, comments about the incident will not be included in the OER.  This restriction is intended to prevent unverified derogatory information from being included in evaluation reports.  It will also prevent information that would be unjustly prejudicial from being permanently included in an officer’s OMPF, such as charges that are later dropped, and charges or incidents of which the rated officer may later be absolved.  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.

14.  Army Regulation 623-105 also contains guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It states, in effect, that the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that clearly and convincingly establishes that the presumption of regularity referred to in paragraph 6-6 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 an administrative error or factual inaccuracy.

15.  A report is required when an 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 or her performance of duty.  

16.  Army Regulation 623-105 states that the primary purpose of a Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier 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 evaluation is accepted at HQDA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not rebut the finding of the OER until he was informed that as a result of his being selected for promotion to colonel, his record was FLAGGED, so that the GORB could complete a review of his military files to determine if there was any substantiating allegations against him.  He was ultimately promoted to colonel even though he contends that this same OER, which is filed in his performance file, has had ramifications and enduring effects on his career.    

2.  By his own admission to the CID, he traveled to New Jersey to obtain ammunition from his father's command and then transported it in his POV.  The CID report cleared him from criminal wrongdoing but questioned his use of the regulation to procure the ammunition. 

3.  He was relieved of his duties as company commander by his SR for a serious integrity violation and questionable judgment.  He was issued a referred OER.  His rated time is shown as 6 months.  He forwarded his comments to his rating official.  
 
4.  The subject OER has been accepted by HQDA, and it is included in the applicant's official record.  However, Army Regulation 623-105, paragraph 3-27, clearly states that rating officials may not make reference to an incomplete investigation concerning an officer.  Therefore, his record should be corrected by removing:

   a.  the rater comments in Part V which state "While an investigation regarding possible criminal conduct continues, it had been decided by applicant's chain of command that he be relieved for cause"; and
   
   b.  the SR comments in Part VII which state "An investigation is still pending by the CID to determine possible criminal conduct." 
   
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x___  __x______  _____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 removing the following comments from the applicant's OER for the rating period 24 May through 22 November 1996:

   a.  The portion of the rater comments in Part V that states "While an investigation regarding possible criminal conduct continues, it had been decided by applicant's chain of command that he be relieved for cause"; and
   
   b.  the portion of the SR comments in Part VII which states "An investigation is still pending by the CID to determine possible criminal conduct." 
   
2.  The Board further determined that 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 removal of the OER for the period 24 May through 22 November 1996.  



      __________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)                                         AR20110011346



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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