IN THE CASE OF:	  

		BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110018056 


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, in effect, removal of the DA Form 67-9 (Officer Evaluation Report [OER]) for the period 28 December 2007 through 6 May 2008 from his Official Military Personnel File (OMPF); "masking" (i.e., transferring) the OER to the restricted section of his OMPF; or redacting the OER.

2.  The applicant states it is unjust for the promotion board to consider the OER because the substantiated basis for the relief for cause (RFC) was conduct that occurred in 2004 when he was a lieutenant.

   a.  Years after the actual incident, when he was a captain and during a bitter divorce, his estranged wife divulged the derogatory information to his command, which resulted in his RFC OER.  He did not officially appeal the OER to the U.S. Army Human Resources Command (USA HRC) because he didn't find legal fault with the OER.  In addition, his branch manager told him that his appeal would not be reviewed during USA HRC's move from Alexandria, VA to Fort Knox, KY.
   
   b.  He believes the RFC OER he received in 2008 was the basis for his non-selection for promotion to major (MAJ)/pay grade O-4.

   c.  Redacting the 2008 OER would produce an equitable result by masking an error he made as a lieutenant during his marital difficulties.

   d.  The OER has fulfilled its purpose as documented by three subsequent OERs he has received.  He adds he is a proven leader, with over 40 months of rear detachment and command time, and he is qualified for promotion to MAJ as shown by his subsequent OERs.
   
     e.  He has learned a lesson from the matter and it has made him a stronger leader and valuable asset to the Army.  Redacting, transferring, or removing the OER would demonstrate that the Army supports the rehabilitation of its officers.

3.  The applicant provides the RFC OER and three subsequent OERs.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer on
21 August 2000 in the rank of second lieutenant in the Quartermaster Corps.  He entered active duty on 11 May 2002

2.  He was promoted to captain (CPT)/pay grade O-3 on 1 September 2005.

3.  A DA Form 67-9 for the period 28 December 2007 through 6 May 2008 shows the applicant was relieved from duty as Commander, 62nd Quartermaster Company.  It shows in:

a.  Part IV (Performance Evaluation - Professionalism):

    	(1)  item a (Army Values), line 7 (Duty - Fulfills professional, legal, and moral obligations), an "X" in the "No" block; and

    	(2)  item b (Leader Attributes/Skills/Actions), line b3 (Actions), block 2 (Decision-Marking), an "X" in the "No" block.

   b.  Part V (Performance and Potential Evaluation):

    	(1)  item a (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), an "X" in the "Unsatisfactory Performance, Do Not Promote" block;

    	(2)  item b (Comment on Specific Aspects of the Performance):  "Though [applicant's] work performance has been within standards, he has failed to live up to the Army Values or the leadership attributes, skills, and actions.  He has failed to live up to his legal and moral obligations and has failed to execute sound decision making.  Specifically, he was found to have had at least one extra-marital relationship with an enlisted, female Soldier.  Moreover, he is suspected, while in company command, of having yet another relationship with a civilian woman, not his spouse.  [Applicant's] engagement in wrongdoing established a permissive atmosphere within the unit which degraded good order and discipline.  Through his misconduct, [applicant] set a poor example for this subordinates."; and

    	(3)  item c (Comment on Potential for Promotion):  "[Applicant's] potential is suspect.  Do not promote at this time."

   c.  Part VII (Senior Rater):

    	(1)  item a (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), an "X" in the "Do Not Promote" block; and

    	(2)  item c (Comment on Performance/Potential):  "While [applicant's] performance of duty conducting combat operations in Iraq was well above average, he was relieved of command for having an inappropriate relationship with a female Soldier.  He has demonstrated the ability to lead Soldiers, but his judgment and professionalism are lacking.  [Applicant] is unfit for command now and, absent marked character improvement, is unfit for career service."

   d.  Part II (Authentication):

    	(1)  item a and item c, the rater (battalion commander) and senior rater (brigade commander), respectively, signed the document on 22 Mary 2008;

    	(2)  item d (This is a referred report, do you wish to make comments?), an "X" indicating it was a Referred Report and also an "X" in the block, "Yes, comments are attached."; and

    	(3)  item e, the applicant signed the document on 28 May 2008.

   e.  The DA Form 67-9 is filed in the performance section of his OMPF.

4.  A review of the applicant's military service records failed to show any evidence that he appealed the OER to the USA HRC, Appeals and Corrections Branch.

5.  A DA Form 67-9 for the period 7 May 2008 through 6 May 2009 shows the applicant was rated in the principal duty of Node Officer in Charge, Consolidated Personnel Processing Center.  It shows in:


   a.  Part V:

    	(1)  item a, an "X" in the "Outstanding Performance, Must Promote" block; and
   
    	(2)  item c, "Unlimited potential.  Make him a Field Grade Officer and groom for battalion command."

   b.  Part VII:

    	(1)  item a, an "X" in the "Best Qualified" block; and

    	(2)  item c, in pertinent part, "Outstanding performance of duty."

   c.  The DA Form 67-9 is filed in the performance section of his OMPF.

6.  A DA Form 67-9 for the period 7 May 2009 through 6 May 2010 shows the applicant was rated in the principal duty of Forward Support Company Observer/Controller, Joint Readiness Training Center.  It shows in:

   a.  Part V:

    	(1)  item a, an "X" in the "Outstanding Performance, Must Promote" block; and

    	(2)  item c, "Promote immediately to major and send to ILE [Intermediate Level Education]."

   b.  Part VII:

    	(1)  item a, an "X" in the "Best Qualified" block; and

    	(2)  item c, in pertinent part, "[Applicant] is in the top 5 percent of captains I senior rate."

   c.  The DA Form 67-9 is filed in the performance section of his OMPF.

7.  A DA Form 67-9 for the period 7 May 2010 through 6 May 2011 shows the applicant was rated in the principal duty of Brigade Combat Team Sustainment Observer/Controller, Joint Readiness Training Center.  It shows in:


   a.  Part V:

    	(1)  item a, an "X" in the "Outstanding Performance, Must Promote" block; and

    	(2)  item c, "Unlimited potential.  Immediately promote to Major."

   b.  Part VII:

    	(1)  item a, an "X" in the "Best Qualified" block; and

    	(2)  item c, in pertinent part, "[Applicant] is one of the top 2 captains
I senior rate and amongst the best I have worked with in 22 years of service."

   c.  The DA Form 67-9 is filed in the performance section of his OMPF.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF.  

   a.  Only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 (Obsolete or no longer used documents) are authorized for filing in the OMPF.

   b.  Depending on the purpose, documents will be filed in the OMPF in one of the three sections:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file.

   c.  Table 2-1 shows that the DA Form 67-9 is filed in the performance section.

   d.  Paragraph 2-3 (Composition of the OMPF), subparagraph c, states the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  Documents in the restricted section are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interest of the Soldier and the Army.

9.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting
System, this includes the DA Form 67–9.

   a.  Chapter 3 (Army Evaluation Principles), paragraph 3-24 (Prohibited comments), provides that no remarks on an evaluation report will be made on performance or incidents occurring before or after the rating period except, in pertinent part, RFC reports based on information pertaining to a previous reporting period.  For example, a rating official may relieve an officer found to be involved in some illegal activity during a previous reporting period.  They may refer to the prior rating period to explain the reasons for relief.

   b.  Chapter 6 (Evaluation Redress Program):

    	(1)  paragraph 6-7 (Policies), places the burden of proof on the applicant to provide clear and convincing evidence to justify deletion or amendment of an OER; and

    	(2)  paragraph 6-8 (Timeliness), shows that substantive appeals will be submitted within 3 years of an OER "THRU" date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the DA Form 67-9 for the period
28 December 2007 through 6 May 2008 should be removed from his OMPF, transferred to the restricted section of his OMPF, or redacted to delete all adverse entries and comments because the conduct occurred prior to the rating period (when he was a lieutenant); the OER has served its purpose, as he was not selected for promotion to MAJ despite three subsequent outstanding OERs; and it would be in the best interests of the Army.

2.  Although the applicant did not provide clear and convincing evidence that the conduct in question occurred prior to the rating period of the OER, his argument is moot because the governing Army regulation provides that an RFC OER may be based on information pertaining to a previous reporting period.

3.  The evidence of record shows the DA Form 67-9 under review is correctly filed in the performance section of the applicant's OMPF.

4.  The fact that the applicant was not selected for promotion is not a basis for redacting the entries and comments in the RFC OER or for transferring the RFC OER to the restricted section of his OMPF.

5.  The three DA Forms 67-9 the applicant offers are noteworthy; however, they provide insufficient evidence to support removal of the OER in question.
6.  By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing that the document is untrue or unjust. The applicant failed to submit evidence that the RFC OER that is filed in the performance section of his OMPF is untrue or unjust.  Therefore, the DA Form 67-9 for the period 28 December 2007 through 6 May 2008 is deemed to be properly filed and should be retained in the performance section of the applicant's OMPF.

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)                                         AR20110018056



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ABCMR Record of Proceedings (cont)                                         AR20110018056



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