IN THE CASE OF:
BOARD DATE: 10 November 2011
DOCKET NUMBER: AR20110016513
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 removal of his DA Form 67-9 (Officer Evaluation Report (OER)) covering the rated period 8 July 2006 through 20 December 2006 from his records, hereafter referred to as the contested OER.
2. The applicant states:
a. The contested OER contains a prohibited comment that conflicts with paragraph 3-28 of Army Regulation 623-105 (Officer Evaluation Reporting System).
b. On 5 March 2009, the Department of the Army Suitability Evaluation Board (DASEB) voted to remove his DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) from the performance section of his OMPF.
c. His permanent record is unjustly prejudicial, as Army Regulation 623-105 clearly states, "when an Article 15 is given and filed on the restricted fiche under Army Regulation 27-10 (Military Justice), paragraph 3-37, and Army Regulation 600-8-104 (Military Personnel Information Management/Records), rating officials may not comment on the fact that an Article 15 was given to the rated officer."
d. His record proves he is a value added asset to the Army due to his consistently high performance in his previous positions. Lastly, his DA Form 4037 (Officer Record Brief) shows he has completed his master's degree in Healthcare Administration.
3. The applicant provides:
* the contested OER
* seven additional DA Forms 67-9 covering the periods 21 December 2006 through 17 May 2011
* DA Form 4980-18 (Army Achievement Medal Certificate), 25 June 2009
* DA Forms 4980-14 (Army Commendation Medal Certificate), 30 August 2007 and 3 July 2010
* DA Form 4980-12 (Meritorious Service Medal Certificate), 4 May 2009
* Transcripts, University of Phoenix, dated 7 April 2009
* DA Form 4037
CONSIDERATION OF EVIDENCE:
1. After previous enlisted service, he was appointed as a commissioned officer in the Regular Army in the rank of second lieutenant and he executed an oath of office on 17 May 2003. On 30 November 2004, he was promoted to first lieutenant and on 1 July 2006 he was promoted to CPT.
2. On 19 December 2006, he accepted nonjudicial punishment under the provisions of Article 15, UCMJ. The imposing commander directed filing the DA Form 2627 in the performance portion of his official military personnel file (OMPF).
3. On 15 February 2007, he received a relief-for-cause OER for his duty performance as an executive officer. This report covered 6 months of rated time between 8 July 2006 and 20 December 2006. In Part Vb (Performance and Potential Evaluation (Rater) Comment on Specific Aspects of Performance), the rater's narrative references his receipt of nonjudicial punishment under the UCMJ.
4. The contested OER was referred to the applicant for acknowledgement. The OER indicates the applicant declined to comment.
5. On 12 December 2008, he requested that the DASEB transfer his DA Form 2627 from the performance portion to the restricted portion of his OMPF. On 5 March 2009, the DASEB considered his request and he was notified by the DASEB of its decision to grant full relief on 11 March 2009. The DASEB also notified the U.S. Army Human Resources Command of its decision on 11 March 2009 and directed the transfer of the applicant's DA Form 2627 to the restricted portion of his OMPF.
6. Army Regulation 623-3 (Evaluation Reporting System), effective 15 June 2006, prescribes the policies for completing evaluation reports that support the Army's Evaluation Reporting System, including the DA Form 67-9. It also provides guidance regarding redress programs, including commander's inquiries and appeals. Paragraph 3-24 (Prohibited Comments), subparagraph b, states that when an Article 15 is given and filed on the restricted fiche or locally under Army Regulation 27-10, paragraph 3-37, and Army Regulation 600-8-104, rating officials may not comment on the fact that nonjudicial punishment was given to a rated Soldier. This provision did not preclude mentioning the rated Soldier's underlying misconduct that served as the basis for the nonjudicial punishment.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that since the DASEB directed the transfer of his nonjudicial punishment to the restricted portion of his OMPF, paragraph 3-28b of Army Regulation 623-105 should apply and the contested OER is invalid if it contains any reference to punishment under the UCMJ.
2. The evidence of record shows the applicant received nonjudicial punishment for misconduct, and the imposing commander directed filing it in the performance portion of his OMPF. The later decision of the DASEB to move the DA Form 2627 to the restricted portion of his OMPF does not invalidate the contested OER, because it was completed prior to the DASEB's decision.
3. The contested OER is facially correct; therefore, there is an insufficient basis to grant relief in this case.
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 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) AR20090007349
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20110016513
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