IN THE CASE OF:	  

		BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20110012756 


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:

	a.  removal of three of the applicant's DA Forms 67-9 (Officer Evaluation
Reports (OERs)) and allied documents for the periods 1 August 2006 to 31 July 2007, 1 August 2007 to 8 February 2008, and 9 February to 4 June 2008 (hereafter referred to as the contested OERs).

	b.  promotion reconsideration by a special selection board (SSB) by the Fiscal Year (FY) 2009 or 2010 (FY10) Lieutenant Colonel (LTC) Army Reserve Promotion Boards; and 

   c.  reinstatement to active duty with all pay and allowances. 

2.  Counsel submitted an 18-page supplemental wherein he essentially states:

	a.  The appeal of the applicant's OERs to the Officer Special Review Board was returned, without action because two of the reports were beyond their 3-year deadline.

	b.  The applicant's appeal to remove all three of the contested OERs is based on the proceedings of the applicant's show-cause board of inquiry (BOI) which discredited the OERs in "factual finding."
	c.  After the show-cause board the Active Guard Reserve (AGR) personnel managers and command at Fort Meade refused to implement the approved transfer recommendation.  The applicant then in July 2009 pursued an Inspector General (IG) complaint without success.

	d.  Although the applicant arrived at Fort Meade in October 2006, OER Number 1 covered the rating period 1 August 2006 to 31 July 2007 in an attempt to show a long history of poor performance and contained negative comments as evident by the rater's testimony and witness statements of a hostile and discriminatory environment.  

	e.  OER Number 2 was a Relief for Cause OER containing negative comments and no documentation to show the contested OER was properly reviewed.  He also received a memorandum of reprimand (MOR) for continuing unprofessional conduct for the period 1 May to 31 December 2007.

	f.  OER Number 3 was a referred report with four different versions; his performance went from excellent and promote to LTC to little potential and remove from program.  

	g.  By the rater's own admission, he only observed the applicant for two of the months, only had a record of counseling from 31 May 2007 forward, kept a daily log which contained only one entry referencing his Unit Strength Report (USR) performance, and the log reveals no training until August 2007.  

	h.  The applicant was ordered to active duty in 2002 in support of the Global War on Terrorism, received all favorable OERs, two above center of mass, a Meritorious Service Medal in 2005, and was accepted into the AGR program.

	i.  In August 2008, a BOI convened for substandard performance of duty and misconduct citing OER numbers 1 and 2 and the reprimand.  However, evidence and testimony during the board revealed substantial questions on all three OERs as to the integrity, reliability, and objectivity of the rating officials, a wholly dysfunctional rating environment.  

   j.  The applicant had recurring medical problems and was diagnosed with major depression, single episode by an Army psychologist.

   k.  Testimony during the BOI by witnesses stated that the applicant's rater and senior rater (SR) were racist as evident by the difference in treatment of African American Soldiers.
   
   l.  After the BOI, the AGR personnel assignment managers and local command at Fort Meade refused to implement the approved transfer.  In addition, an IG complaint was unsuccessful.
	3.  Counsel provides:

* seven OERs
* DA Form 67-9-1 (Officer Evaluation Report Support Form) 
* DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)
* DA Form 638 (Recommendation for Award)
* DA Form 1574 (Report of Proceedings by Investing Officer/Board of Officers)
* DA Form 1059 (Service School Academic Evaluation Report)
* DA Form 1559 (Inspector General Action Request)
* 14 DD Forms 689 (Individual Sick Slip)
* 15 DA Forms 4856 (Development Counseling Form)
* Report of Behavior Health Evaluation
* a supplemental statement from applicant
* a BOI with the government and respondent exhibits
* Army Special Review Boards memorandum, dated 11 May 2010
* eight memoranda

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.  At the time of his application, the applicant was a major (MAJ) assigned to the AGR program, with a date of rank of 14 August 2003, and duty at Headquarters, First Army Division East, Fort Meade, MD.  

3.  His record contains the first contested OER and rebuttal to the OER covering the rating period 1 August 2006 to 31 July 2007 for his performance of duty as a Readiness Officer and covering 6 months of rated and 6 months non-rated time.  His rater was the Chief, Mobilization, a general service (GS) 13, J-------n R—d, and his SR was the Division G3, Colonel (COL) R-----d K----f.  The contested OER shows his rater and SR signed the report on 25 September 2007 and shows in:

	a.  Part IV (Performance Evaluation – Professionalism (Character)) the following entries:
   	(1)  Part IVa (Army Values) the rater placed an "X" in the "No" block for items 2 (Integrity) and 6 (Selfless-Service). 
   	
      (2)  Part IVb (Leader Attributes/Skills/Actions), subsection b.1 (Attributes), the rater placed an "X" in the "No" block for item 1 (Mental). 
    
   	(3)  Part IVb, subsection b.3 (Actions (Leadership) – Influencing, Operating, and Improving), the rater placed an "X" in the "No" block for items 2 (decision-Making) and 5 (Executing).

	b.  Part V (Performance and Potential Evaluation (Rater)) the following entries are noted in:

		(1)  Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed an "X" in the "Unsatisfactory Performance – Do Not Promote" block.

		(2)  Part Vb the rater entered:  "(Applicant) does not perform at the field grade level of competency.  He is routinely late or misses work and does not keep his chain of command informed until after the fact.  When questioned about his conduct, [the applicant] is evasive and is often not forthright in his answers.  He does not adhere to the Army Values of Integrity and Selfless Service.  He was initially counseled quarterly which turned into monthly then weekly counseling because he required specific guidance to complete simple tasks.  One area where he has increased overall effectiveness is the Division Unit Readiness reporting.  However, that usually takes the Deputy G3's direct supervision to make that happen to include on time writing of the applicant’s script for the Video Tele-Conference (VTC) introduction.  He did increase cross talk between the ten brigades and division on the USR process and reporting procedures.  Officer failed to Participate in unit weigh-in during April 2007 Army Physical Fitness Test."
		
		(3)  Part Vc the rater entered:  "Do not promote.  Do not consider for command or retain on active duty.  No potential for continued service in the Army.  [Applicant] should be separated from the AGR system and released from active duty at the Army's earliest opportunity."

	c.  In Part VII, SR, the following entries are noted in:

		(1)  Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the SR placed an "X" in the "Do Not Promote" block.
		
		(2)  Part VIIb (Potential Compared with Officers SR in Same Grade), the SR placed an "X" Below Center of Mass, do not retain" and entered the following remarks in Part VIIc.
		
		(3)  Part VIIc:  "Do not promote or retain on active duty.  (Applicant) is not a self starter and has questionable integrity.  I do not trust he will tell me the truth whether it’s why he failed to report or the accuracy of his TDY voucher.  (Applicant) is continually late for work and performs tasks at a substandard level.  I have counseled him numerous times for unacceptable performance and have not seen any real progress or willingness to improve.  In April 2006, I had to have the Deputy G3 stay in the office until 2300 the night before the USR VTC to ensure the Division was prepared to receive the USR reports from its subordinate brigades.  (Applicant) is not suited for military service."

	d.  On 16 October 2007, the first contested OER was referred to the applicant for his acknowledgement.  He signed the OER and indicated that he would be submitting comments on his behalf.

	e.  On an unknown date, he submitted a rebuttal to this OER wherein he essentially stated of the 12-month period of this OER, only the 6 months he was assigned to First Army can be rated; he does not remember being counseling upon arriving; his rater changed and was assigned to him 4 to 5 months ago; he did not start receiving counseling until he was assigned to the mobilization branch; he started receiving counseling statements weekly all of a sudden without any corrective action and time to change things mentioned; the events he was counseled for were so minor that corrective action was not needed; and an attempt was made to work with him on his reporting time due to having to drop his child off, but it turned out not to be enough time at times due traffic issues.  He essentially stated he conducted USR turn-in with the brigades by himself without much training.  

	f.  He specifically stated communication was poor as evidenced by him not being told he had to weigh-in, although he was not present during the APFT so it appears he disobeyed a direct order.  Most importantly, his evaluation mentioned the failure to report or the accuracy of his temporary duty (TDY) voucher.  However, he was never counseled for inaccuracies on his TDY voucher and he never falsified a TDY voucher.  He recommended his rating be changed to Center of Mass with the following year to continue improving and developing his career as a Staff Officer at First Army Division East.  

4.  His record contains the second contested OER and rebuttal to the OER, a Relief for Cause OER for his performance of duty as a Readiness Officer, covering 6 months of rated time between 1 August 2007 and 8 February 2008.  His rater remained
J-----n R--d and his SR became COL R-----d F--k.  The second contested OER shows 

his rater signed the report on 19 February 2008 and the SR signed the report on
7 March 2008.  It shows in:

	a.  Part IV the following entries:

   	(1)  Part IVa, the rater placed an "X" in the "No" block for items 2 (Integrity) and 6 (Selfless-Service); 
    
   	(2)  Part IVb, subsection b.1, the rater placed an "X" in the "No" block for item 1 (Mental), and item 2 (Interpersonal); and 
    
   	(3)  Part IVb, subsection b.3 (Actions (Leadership) – Influencing, Operating, and Improving), the rater placed an "X" in the "No" block for item 1 (Communicating) and item 3 (Motivating).

	b.  Part V, the following entries are noted in:

		(1)  Part Va, the rater placed an "X" in the "Unsatisfactory Performance – Do Not Promote" block and entered the following remarks in Part V:

		(2)  Part Vb, "(The applicant) performed in a substandard manner throughout this rating period and was relieved of his duties by the Division G3.  I fully support the relief. (The applicant's) overall performance was characterized by ineptness and an indifferent attitude.  The quality of his work was always substandard, resulting in about 90% to be completed by me or another.  His projects were always late and incomplete.  His writing skills are inadequate and far beneath his peers.  While counseled numerous times, (the applicant) could not even report to duty on time.  I could not rely on (the applicant) for anything.  I have spent far too much energy attempting to coach, counsel and train this Soldier to perform at the level expected of those beneath his rank."

		(3)  Part Vc, the rater entered, Do not.  Do not consider for command or retain on active duty.  Recommend separation from the Active Guard and Reserve system.

	c.  Part VII, SR, the following entries are noted in:

		(1)  Part VIIa, the SR placed an "X" in the "Do Not Promote" block;

		(2)  Part VIIb, the SR placed an "X" "Below Center of Mass Do Not Retain" and entered the following remarks in:

		(3)  Part VIIc,  "I relieved (the applicant) for cause 08 Feb 08.  My recommendation is that the Army does [sic] not promote nor [sic] retain (the applicant). He does not perform his duty at a skill level commensurate of [sic] a field grade staff officer.  Though a senior Major, he is not a self starter and requires constant supervision to complete any assigned task.  He regularly is late for work even after counseling.  Although coached and taught by his rater and peers in the mobilization section he has not improved his self-less service, Motivation skills, technical, communications or decision making abilities.  He has a good personality, shows loyalty, and is frustrated by medical issues.  I recommend he appear before a BOI for separation.  He is not suited for further active service in the Army."
	
	d.  On 14 March 2008, the contested evaluation report was referred to the applicant for his acknowledgement.  The applicant signed the memorandum and indicated that he would be submitting matters on his behalf.

	e.  On an unknown date, he submitted a rebuttal to the OER and essentially stated that he was a team player who had not nor would he comprise his integrity, who has always given of himself to the First Army and its subordinate commands who could attest to the long hours he has worked during USR turn-in without complaining.  He also essentially stated he would never abuse sick call so is having a hard time understanding why he was being reprimanded for going on sick call when it was clear to the physicians he was ill.  He had been working with the Defense Finance Accounting and Service (DFAS), and as a result, no longer had a Bank of America card balance.  He recommended that the referred OER and administrative reprimand be downgraded to a verbal reprimand and that he be allowed to work in the Training Section as directed.  

5.  On 15 May 2008, the Commander, Headquarters, First Army Division East, reviewed the referred OER and determined it was complete and correct as written.

6.  He submitted the first page of a memorandum from Headquarters, First Army Division East, Fort Meade, MD, Subject:  Administrative Reprimand, dated 8 February 2008, showing he received an MOR for a continuing course of unprofessional conduct including repeated absences from duty, lack of accountability as evidenced by his failure to report to or check in with his supervisors, and failures to make payments on his government credit card.  The applicant acknowledged receipt of the MOR and submitted a rebuttal to the MOR and made the following statements in his own behalf:

	a.  He would never compromise and does not recall ever compromising his integrity.

	b.  He had worked well with the Brigade and First Army who would attest to the work he has put into and done with the USR to improve reporting capabilities. 

	c.  He has been counseled and did not agree with things being said.
	
	d.  He did not think the reprimand should be placed in his record and/or that he should receive another referred OER for something such as this (the reprimand). 
	e.  He had been working to resolve his credit card debt and had done what DFAS had asked by submitting a supplemental voucher. 
	
	f.  He requested downgrade to a verbal reprimand and that he be allowed to work in the training section as directed. 

	g.  The MOR was imposed as an administrative measure and not as nonjudicial punishment under Article 15, Uniform Code of Military Justice.  

	h.  On 31 March 2008, the commanding general directed filing of the MOR in the applicant's local informational personnel files/official military personnel file to be destroyed 1 year after transfer or separation.

7.  He submitted a memorandum from the U.S. Army Human Resources Command (HRC), St Louis, MO, Subject:  Notice of Non-Continuation for Subsequent AGR Tour, dated 3 March 2008, stating he was disqualified for continuation due to receiving a referred OER during his initial tour which prohibits his placement on indefinite status in the AGR Program.  On 19 March 2008, he acknowledged receipt of the correspondence and requested 30 October 2008 as his REFRAD date.

8.  He submitted a Report of Behavioral Health Evaluation, dated 7 March 2008, showing he was diagnosed with major depression, single episode and the psychologist recommended he be placed in a less stressful situation, possibly, in a different section with a different supervisor due to a personality conflict and perception that his work environment was depressing.

9.  He received a memorandum from the Regional Support Group-East, Birmingham, AL, Subject:  Initiation of Elimination, dated 25 April 2008, informing him that he was required to show cause for retention on active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 4, paragraph 4-2a(1) - (6), (8), (13) - (14), and (16) for various instances of substandard performance of duty; paragraphs 4 - 2b(1) - (5), and (7) - (8) for various instances of misconduct, moral, or professional dereliction; or in the interest of national security, paragraph 4-2c derogatory information; and paragraph 4-2c(4), in regard to receipt of a Relief for Cause OER.  On 5 May 2008, he acknowledged receipt of the notification of elimination.

10.  He received a memorandum from HRC, Subject:  Waiver Request for Continuation in the AGR Program, dated 29 April 2008, informing him that his request for waiver for continuation in the AGR program was approved.

11.  He submitted a DA Form 268, showing, as instructed by the upcoming BOI, a FLAG for adverse action was initiated on 5 May 2008.

12.  His record contains a memorandum from the Director, U.S. Army Reserve (USAR) Active Duty Management Directorate, Personnel Readiness Division, HRC, to his Representative in Congress, dated 23 June 2008, responding to the applicant's inquiry regarding his allegations of unfair treatment.  It states unfair treatment should be addressed to the U.S. Army Reserve Command (USARC), Fort McPherson, GA and further explained that if he was granted relief he may then appeal to the Commander, HRC (Appeals) for any corrections of any unwarranted unsatisfactory evaluation reports.  There is no evidence these allegations were addressed to USARC.

13.  His record contains the third contested OER and rebuttal to the OER covering the rating period 9 February and 4 June 2008, a change-of-rater OER for his performance of duty as the Training Officer.  The rater was the Chief, G3 Training, LTC R d H---d, and his SR remained COL R-----d F--k.  The contested OER shows his rater signed the report on 26 June 2008 and the SR signed the report on 29 July 2008.  It also shows that in:

	a.  Part V, following entries are noted in:

		(1)  Part Va, the rater placed an "X" in the "Satisfactory Performance - Promote" block and entered the following remarks in Part V:

		(2)  Part Vb, "(The applicant’s) performance of duty as a training officer within First Army Division East was adequate.  (The applicant) assisted the senior training officer in the development and implementation of a tracking and reporting system for all Senior Mentor and Pre-deployment Site Survey requests.  These systems provided a solid base of knowledge that was subsequently used by all personnel within the training section.  His assistance with these programs resulted in a process that was synchronized with First Army and which reduced processing times for all requests.  (The applicant) also served as the alternate USR officer for the division and served in that capacity once during this rating period with little notice."

		(3)  Part Vc, The applicant has limited potential for further service in the Army but has not exhibited the drive or desire necessary to reach that limited potential.

	b.  In Part VII, the following entries are noted in:

		(1)  Part VIIa, the SR placed an "X" in the " Do Not Promote" block;

		(2)  Part VIIb, the SR placed an "X” in the block "Below Center of Mass Do Not Retain" and entered the following remarks in:

		(3)  Part VIIc:  "(The applicant’s) duty performance during this rating period improved very slightly.  He accomplished some missions that he was assigned, but is still not performing anywhere near field grade level.  The applicant did fill in and help prepare the division USR on short notice, but he continues to have problems getting to work on time.  He is a likeable officer but demonstrates little drive and lacks the requisite skills to perform as a field grade officer in the G3 section.  He demonstrates little or no potential, and I would not select him for promotion or for schooling.  I continue to recommend that he be removed from the AGR program."

	c.  On 30 July 2008, the contested OER was referred to the applicant for his acknowledgement.  The applicant signed the memorandum and indicated that he would be submitting matters on his behalf.

	d.  On the same date, he submitted a rebuttal to his OER.  He essentially stated he disagreed with the proposed OER, the direction the OER took in its finality, and why the rater and SR changed it from a positive to a referred report when historically he received all positive OERs as evidenced by the numerous awards and excellent OER’s he received from previous commands.

	e.  He specifically stated since arriving at First Army Division East he had not been given a proper opportunity to excel, he worked tirelessly to produce results at First Army Division East, he performed much better than this evaluation illustrates or portrays, he worked extremely hard to be recognized, and he requested that his OER revert to its prior form and that he be transferred so his efforts and work may be properly appreciated. 

14.  On 25 August 2008, a BOI convened to consider whether the applicant should be administratively separated from the USAR.  The applicant and his counsel were present along with his rater and SR.  The BOI heard the testimony of the applicant, the government witnesses, and reviewed the following documents:    

	a.  A DA Form 638, dated 5 October 2005, showing he was awarded the Meritorious Service Medal for exceptionally meritorious service form 9 September 2005 to 30 October 2005.

	b.  Four OERs covering the rating periods from 28 September 2003 through 31 July 2006, showing his duty performance prior to his assignment to First Army.

	c.  14 DD Forms 689, showing his sick call visits from 18 January 2007 to 26 March 2008. 

	e.  A DA Form 67-9-1, signed 28 August 2007, showing his principal duty title as the Readiness Officer.

	f.  15 DA Forms 4856, dating from 27 May 2007 to 8 May 2008, showing the applicant was counseled for performance, absences from his appointed place of duty, late or missing formations, late for work call, failure to ensure mobilization slides were updated, unsatisfactory USR turn-in, financial delinquency, absent from physical fitness training, and relief for cause.  

	g.  Eight pages of a memorandum for record which show the days the applicant was counseled by Mr. R--d, his rater dating from 30 May 2007 to 26 February 2008.

	h.  Seven letters of recommendation, dating from 18 June to 22 August 2008, requesting that his waiver be approved and he be authorized to remain on active duty.

	i.  An email from his career manager, dated 11 August 2008, explaining that while he was FLAGGED he was not eligible for a transfer.

	j.  An email from his trial defense counsel to his career manager, dated 2 September 2008, explaining that, in his opinion, the applicant's FLAG should be removed once the BOI, which met on 25 and 26 August 2008, found no grounds for separation and recommended retention, he was eligible for consideration for favorable personnel actions, which included reassignment.

15.  The BOI found that his actions did not amount to substandard performance of duty; he did not have a pattern of misconduct; and he did not, in regard to receipt of a Relief for Cause OER, have derogatory information that when combined with other known deficiencies formed a pattern that when reviewed in conjunction with his overall record required separation.  The BOI recommended he be retained in the Army and reassigned from First Army Division-East into another assignment.

16.  He submitted as evidence to this Board:

	a.  A memorandum and allied documents, he submitted to the to the Commander, U.S. Army HRC, Subject:  Request for Realignment/Permanent Change of Station (PCS), indicating that on 15 June 2009, he requested to be reassigned or allowed to proceed on a PCS based on medical, family suffering, and more importantly his career being tarnished in his assignment.  He explained that his environment, the BOI, and treatment were the reason for his request.

	b.  A DA Form 1559, dated 2 July 2009, to the Inspector General (IG) requesting his assistance in getting an immediate PCS from the First Army East, based on the elimination board hearing results and recommendations.

	c.  Emails dating from 22 September 2009 through 1 April 2010 from the IG to his career manager indicating a decision was made to leave him in place pending the results of the upcoming LTC Army Promotion List board in September even though he had not completed the Command and General Staff Officer Course (CGSC) or ILE.

	d.  A DA Form 1059, which shows from 1 May 2009 through 19 August 2010 he attended and completed CGSC.
	
	e.  Three memoranda, dated 27 January 2010, to the Commander, HRC, Subject:  Evaluation Report Appeals, requesting appeal the contested OERs.
	
	f.  Page one of a memorandum from Headquarters, First Army Division, Subject:  FY10 LTC Army Promotion List, USAR Components (AGR/ND/RES) Promotion List, dated 12 January 2011, which stated that of the 141 AGR MAJs Armywide who were considered for the first time for promotion in the primary zone to LTC, 112 were selected, which resulted in a 79% selection rate.  The memorandum further stated that of the promotion opportunity in the primary zone Armywide, 141 were considered and 152 were selected for a 108% selection rate.  The First Army East had 55 MAJs considered and 12 selected for promotion.

	g.  A memorandum from HRC, Subject:  Notice of Second Non-selection for Promotion to LTC, dated 3 February 2011, which informed him that he was considered for promotion to LTC by the mandatory DA RCSBP, but he was not selected.  This constituted his second non-selection for promotion and in accordance with Army Regulation 600-8-24 he must be released from active duty no later than 120 days after receipt of this involuntary release notification.  He would then be released from an active status per Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers).  He signed the Acknowledgement and Election of Options on 17 February 2011, and indicated he would transfer to the USAR Control Group (Reinforcement).  A second memorandum, dated 18 February 2011, further explained that he would then be released from an active status and the AGR program no later than 120 days after the date of this notification.  

	h.  A memorandum from HRC, Subject:  Evaluation Report Appeals (20060801-20070331), (20070801-20080208), and (20080209-20080604), dated 4 May 2011, which was in response to his correspondence concerning the OER appeal dated         23 April 2011.  The memorandum stated Army Regulation 623-3 (Evaluation Reporting System) placed a time restriction on the submission of substantive appeals and the evaluations he was interested in appealing had the "thru" dates of 31 July 2007 and       8 February 2008.  Since they were not received within three years of those dates they were returned without action and he was told he must make application to the Army Board for Correction of Military Records.  The memorandum also explained that he had not provided exceptional justification to waive the 3-year limitation on the OERs.  However, if he resubmitted a separate appeal packet for the OER for the period 9 February through 4 June 2008 by 4 June 2011, the case would be analyzed and forwarded, if clear and convincing evidence was attached in accordance with Army Regulation 623-3, paragraph 6-11.  There is no evidence he resubmitted an appeal of OER Number 3 to HRC.

17.  On 31 July 2011, he was released from active duty by reason of two-time non-selection for permanent promotion and transferred to the USAR.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 9 years, 10 months, and 5 days of creditable active service.

18.  On 2 August 2011, he was reassigned to the Retired Reserve by reason of completion of 20 years or more of combined active and reserve service.

19.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) provides for the assignment, transfer, and separation of USAR personnel.  Paragraph 7-4b states an officer who twice fail selection for promotion to LTC will be discharged unless he is eligible for and requests transfer to the Retired Reserve.  

20.  Army Regulation 600-8-24 prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more.  It gives reasons (or ones similar) that require an officer’s record to be reviewed for consideration of terminating appointment.  Standing alone, one of these conditions may not support elimination; however, this derogatory information combined with other known deficiencies form a pattern that, when reviewed in conjunction with the officer’s overall record, requires elimination:

* punishment under UCMJ, article 15
* conviction by court-martial
* final denial or revocation of an officer’s Secret security clearance by appropriate authorities acting pursuant to Department of Defense Directive 5200.2-R and Army Regulation 380-67 (Personnel Security Program)
* Relief for Cause OER under Army Regulation 623–105, paragraph 3–32
* adverse information filed in the OMPF in accordance with Army Regulation    600–37
* failure of a course at a service school

21.  Army Regulation 600-8-24, paragraph 4-6 contains guidance on BOIs and states the purpose of a BOI is to give the officer a fair and impartial hearing determining if the officer will be retained in the Army.  Through a formal administrative investigation conducted under Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) and this regulation, the BOI establishes and records the facts of the respondent's alleged misconduct, substandard performance of duty, or conduct incompatible with military service.  Based upon the findings of fact established by its investigation and recorded in its report, the board then makes a recommendation for the officer's disposition consistent with this regulation.

22.  Paragraph 4-15b(3) Army Regulation 600-8-24 states a BOI may not recommend removal of documents such as OERs, Article 15s, and Memoranda of Reprimand from an officer's OMPF.  The board recommendations are limited to either retention (with or without reassignment) or elimination.  

23.  Army Regulation 623-3 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.

24.  Army Regulation 623-3 states the rater will be designated and serve in that capacity for at least 90 calendar days.  Exceptions to this policy are given in Section V of Chapter 2.  If the minimum requirements have not been met, the intermediate rater, if any, will perform the rater’s functions.  However, the intermediate rater will do so only if he or she feels qualified to rate and has served in the rated officer’s rating chain for a period of 60 or more calendar days.  If there is no intermediate rater or if the intermediate rater does not feel qualified or has not met the 60 day requirement, the SR will perform the rater’s function; but the SR will do so only if he or she feels qualified to rate and has served in the rating chain for 60 or more calendar days.  If the SR does not feel qualified or has not met the 60-day requirement, the period will be nonrated.  If a SR assumes the role of rater, he or she will serve as both rater and SR.

25.  Army Regulation 623-3, 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.

	a.  Paragraph 2-18c states relief OERs will be reviewed by the first U.S. Army officer in the chain-of-command who is senior to the individual directing the relief.  If the relief is directed by the rater or intermediate rater, a SR, provided he/she is a U.S. Army 
officer, will perform the review.  This officer will perform the functions described in paragraph 2–18c(1) through (5).  The SR’s comments will be prepared as an enclosure to the OER (fig 2–2).  If there is no U.S. Army officer in the chain of command above the person directing the relief, the report will be forwarded to HQDA for review.


   b.  Paragraph 2-20 states special rules apply when a rating official is eliminated from the rating chain or is unable to render an evaluation of the rated Soldier.  These situations occur when a rating official dies, is declared missing, is relieved of his or her position or duties for cause, or becomes mentally or physically incapacitated to such an extent that he or she is unable to render an objective or accurate evaluation.  When a rating official is officially relieved or determined to be incapacitated, he or she will not be permitted to evaluate his or her subordinates.  This restriction will apply to evaluation reports with “THRU” dates prior to the relief or incapacitation of the rating official that have not yet completed processing to the rated Soldier’s OMPF.
	
	c.  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.

	d.  Paragraph 3-24 describes prohibited comments.  It states the use of inappropriate or arbitrary remarks or comments that draw attention to differences relating to race, color, religion, gender, age or national origin are prohibited.  Subjective evaluation will not reflect a rating official’s personal bias or prejudice.  No remarks on an evaluation report will be made on performance or incidents occurring before or after the rating period except in the case of Relief for Cause reports and entering the most recent Army Physical Fitness Test score.  

	e.  Paragraph 3-34 states 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.

	f.  Paragraph 3-36a states 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.

	g.  Paragraph 3-36b states 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; rating officials may not rebut rated Soldier's referral comments.  

	h.  Paragraph 3-54 states a Relief for Cause report 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 their performance of duty.  In this regard, duty performance will consist of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards shown in DA Form 67–9, Part IV.

	i.  Paragraph 6-2 states third-party statements form the basis of most substantive appeals.  "Third Parties" are persons who have official knowledge of the rated 
individual's duty performance during the period of the report being appealed.  Statements from individuals who establish they were on hand during the contested rating period and who served in positions from which they could observe the appellant's performance and their interactions with rating officials, are both useful and supportive.  

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

26.  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.
		
27.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  Chapter 7 prescribes the rules for conducting an SSB.  It states an SSB may be convened under Title 10, U.S. Code, Section 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: 

   a. Mandatory when an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error; 

   b.  An SSB is discretionary when the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error; or
   c.  An SSB is discretionary when the board that considered an officer from in or above the promotion zone did not have before it some material information. 

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends that in regard to the first contested OER, the rater tried to show a pattern of negative behavior to support the entire 12-month period, but the contested OER clearly shows a 6-month nonrated period equivalent to the 6 months from 1 August 2006 to 31 January 2007.  The BOI pointed out that by the rater's own admission that he did not arrive at Fort Meade until January 2007.  However, although the rater was out for a while due to medical reasons there is no evidence nor did the applicant submit any evidence that shows the rater was physically incapacitated to such an extent that he was unable to render an objective or accurate evaluation or failed to meet the 90-day rater qualification period. 

2.  Evidence of record shows he rebutted the OERs; however, there is no evidence nor did he submit any evidence showing he appealed or requested a commander's inquiry in regard to the contested OERs until 2010, three years after the reports were rendered.

3.  Although he states his problems with his rater were racial in nature, there is no evidence nor did he submit any evidence that he attempted to notify his senior leaders as recommended by HRC, the Inspector General, or the Equal Opportunity Commission of his problems.  

4.  The BOI found that in regard to the receipt of the Relief for Cause OER, the applicant did not have derogatory information that when combined with other known deficiencies form a pattern that, when reviewed in conjunction with his overall record, require separation, and the BOI recommended he be retained and transferred.  However the BOI did not recommend that the Relief for Cause OER be removed from this record.  Army Regulation 600-8-24 clearly states that a BOI may not recommend removal of documents such as OERs, Article 15s, and GOMORs from an officer's OMPF, and is limited to recommending either retention (with or without reassignment) or elimination.   

5.  Contrary to the applicant's contention that if the contested OERs were not in his OMPF he would have been promoted and retained in the AGR program, evidence of record indicates he was relieved and discharged due to being a two-time non-select for promotion to LTC in addition to the presence of the three referred OERs.

6.  After a comprehensive review of the evidence in the applicant's official record, counsel’s contentions, arguments, and the evidence submitted in support of his application, other than the applicant's dissatisfaction, counsel did not provide clear and convincing evidence to overcome the "presumption of regularity" and justify changing or removal of the contested OER.  Based on the applicable regulations, the contested OERs are correct as constituted and the applicant did not meet the burden of proof necessary to change or remove the contested OERs.  

7.  Counsel further contends the applicant should be referred to an SSB for promotion consideration to LTC and reinstated to active duty with all pay and allowances should the Board grant his request for removal of the contested OERs.  The evidence of record does not support removal of the contested OERs for the rating periods ending 31 July 2007, 8 February, or 30 June 2008.  There is no evidence in the applicant's file and the applicant has not provided sufficient proof that a material error existed in his file at the time he was non-selected for promotion.  Therefore, he is not entitled to consideration by an SSB or reinstatement to active duty with all pay and allowances.

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)                                         AR20110012756



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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