IN THE CASE OF:	  

		BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110015137 


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 to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of his DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 26 January 2008 through 4 August 2008 from the applicant's Official Military Personnel File (OMPF).

2.  Counsel states:

* the relief-for-cause OER was based on allegations that resulted in a full acquittal at court-martial on 13 November 2009
* the relief-for-cause OER in question contains negative markings and comments in virtually every section based solely on the alleged misconduct
* the applicant has had no negative administrative or disciplinary action before or since this incident
* the relief-for-cause OER was appealed, but was denied

* the decision referred to an "internal legal opinion" that was obtained which supported the denial of the appeal
* a copy of the opinion was not provided for review or comments


* removal of the relief-for cause OER serves the interest of justice
* the convening authority's action following the court-martial directs "the rights, privileges and property of which the accused has been deprived of by virtue of these proceedings will be restored
* the applicant did not ask to be removed from his position in the deployed location and he was ultimately vindicated of the allegations against him
* the relief for cause OER is inaccurate and will negatively and unfairly impact the applicant's future Army career

3.  Counsel provides:

* self-authored statements 
* counsel authorization letter
* evaluation report appeal with attachments
* denial of evaluation report appeal decisional document

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a second lieutenant on 9 December 2004.  He was promoted to captain on 1 February 2008.

2.  Court-Martial Order Number 11, dated 21 April 2010, shows the applicant was acquitted of the following charges:

* not guilty of grabbing "XXX" on the neck and arm with his hands
* not guilty of endangering the mental health of a child under the age of 16 by unlawfully grabbing "XXX" on the neck and arm with his hands
* not guilty of possessing an unregistered firearm

3.  The contested OER is a relief-for-cause OER covering the period 26 January 2008 through 4 April 2008.  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 "Unsatisfactory Performance, Do Not Promote" box and, in pertinent part, the following comment in Part Vb (Comment on Specific Aspects of the Performance):

	"…Despite [the applicant's] strong job performance, he failed to meet the standard we expect of officers by being involved in a domestic disturbance dispute and possessing unregistered firearms."


4.   Part Vc (Comment on Potential for Promotion) shows the following:

	"[The applicant] has no potential for future service in our Army and absolutely should not be promoted to Major.  He fails to meet the standards we expect of all officers in the United States Army."

5.  In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Do Not Promote" box and placed the following comments in Part VIIc:

   "[The applicant] performed his duties adequately as the Battalion S4.  He ensured subordinate companies had the supplies they needed.  He played a key role in the building of two new patrol bases for the Battalion.  He ensured the battalion had the resources it needed to smoothly build these locations as he consistently anticipated company requirements.  Unfortunately, while on Environmental Leave, [the applicant's] off duty behavior severely impacted his ability to perform his duties as the Battalion S4 and he could not return to Iraq and rejoin the unit.  In the course of a domestic dispute, he demonstrated extremely poor judgment and conduct unbecoming for a U.S. Army officer.  His behavior has cost him the respect of his subordinates, peers, and supervisors.  At this time, he should not be promoted."
   
6.  A review of the applicant's performance section of his OMPF on the interactive Personnel Electronics Records Management System (iPERMS) revealed a copy of the contested OER.

7.  In August 2010, he submitted an appeal to the Army Special Review Board (ASRB) requesting removal of the contested OER from his OMPF.

8.  On 7 April 2011, 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 the case did not warrant the requested relief requested.

9.  Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted by Headquarters, Department of the Army 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 paragraph 3-39 and 6-7 will not be applied to the report under consideration and

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

10.  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.

11.  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 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.

12.  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.

13.  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.  Counsel's request for removal of the applicant's DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 26 January 2008 through 4 August 2008 from his official military personnel file (OMPF) was carefully considered.

2.  Counsel contends the OER is unjust, contains negative markings and comments based entirely on allegations, and should be removed because the applicant was acquitted at court-martial.  However, there is evidence which shows the applicant's unbecoming conduct during a domestic dispute led to him not being able to perform his duties.

3.  Although the applicant was acquitted of charges, the fact remains that at the time the report was rendered, his senior rater objectively opined he exhibited extremely poor judgment during a domestic dispute that led to charges being preferred. 

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


5.  In viewing of the foregoing, there is no basis for granting the 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)                                         AR20110015137



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ABCMR Record of Proceedings (cont)                                         AR20110015137



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