BOARD DATE:	    27 October 2011

		DOCKET NUMBER:  AR20110019259 


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 the DA Form 67-9 (Officer Evaluation Report (OER)) for the period 1 July through 4 November 2010, and all documents related to appeal of the OER, from his Official Military Personnel File (OMPF).

2.  The applicant states he was issued a relief for cause (RFC) OER for the period 1 July through 4 November 2010.  The OER contained the comments of both the rater and senior rater, along with their electronic signatures.  He drafted his rebuttal, attached it to the OER, electronically signed the OER on 13 January 2011, and routed the documents back to his chain of command.

	a.  In response to his comments, but without any formal counseling of the applicant, the rater revised the Army Values section of the OER by removing several "No" checkmarks.  He also revised the OER by increasing the negative comments regarding the applicant's performance.

	b.  The revised OER was electronically signed by the rater and senior rater, but it was not referred to the applicant for review and any additional rebuttal. Instead, the OER was sent directly to the U.S. Army Human Resources Command (USA HRC).  Consequently, the revised OER contained an "old" signature of the applicant.

	c.  The applicant notified the battalion adjutant that the OER should have again been referred to him for rebuttal comments, but she dismissed his assertion.  The revised OER is now filed in his OMPF with the old rebuttal that does not tie-in to the revised OER.

3.  The applicant provides copies of the two versions of the RFC OER, his OER appeal with supporting documents, and the results of the OER appeal.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed and entered active duty as a Reserve commissioned officer of the Army on 29 May 2004 in the rank of second lieutenant in the Field Artillery.

2.  He was promoted to captain (CPT)/pay grade O-3 on 1 July 2007.

3.  A copy of the initial version of the OER for the period 1 July through
4 November 2010 is not filed in the applicant's OMPF; however, the applicant provided a copy of the document.  It shows the applicant was relieved from duty as Commander, Company D, Warrior Transition Battalion - Europe.  It also shows in:

	a.  Part IV (Performance Evaluation - Professionalism):

		(1)  item a (Army Values):

			(a)  line 1 (Honor), an "X" in the "No" block;

			(b)  line 2 (Integrity), an "X" in the "No" block;

			(c)  line 3 (Courage), an "X" in the "Yes" block;

			(d)  line 4 (Loyalty), an "X" in the "No" block;

			(e)  line 5 (Respect), an "X" in the "Yes" block;

			(f)  line 6 (Selfless-Service), an "X" in the "No" block; and

			(g)  line 7 (Duty), an "X" in the "No" block;

		(2)  item b (Leader Attributes/Skills/Actions):

			(a)  line b2 (Skills), block 1 (Conceptual), an "X" in the "No" block;

			(b)  line b3 (Actions), block 2 (Decision-Marking), an "X" in the "No" block;

		(3)  item d (Officer Development - Were Developmental Tasks Recorded on DA Form 67-9-1a and Quarterly Follow-up Counselings Conducted?), an "X" in the "NA" block; and

	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 "Other (Explain)" block;

		(2)  item b (Comment on Specific Aspects of the Performance):  "Following the completion of an AR 15-6 Investigation, as [applicant's] rater I directed that he be relieved of company command, which the ERMC [Europe Regional Medical Command] Commanding General approved, for his inability to abide by the Army values as evidenced in his engaging in an inappropriate relationship with someone not his wife while he was married, although estranged from his wife at the time.  His selfishness of engaging in and nurturing this relationship compromised the good order and discipline of his organization and given the distractions caused, he became an ineffective leader.  His abrupt absence during the investigation, and as a result of his relief for cause, created hardships on his staff and compromised the mission of taking care of Warriors and their families.  His actions reverberated through more than just his unit which brought into question his loyalty to the organization and sense of duty to mission accomplishment.  While [applicant] admitted to the adulterous affair, which speaks to a sense of honor and personal courage, his disrespect of military law calls into question this officer's integrity in administering command authority while violating the Uniform Code of Military Justice (UCMJ).  He showed promise in the execution of his military duties, but failed to adhere to the Army values, which are non-negotiable."

	c.  Part VII (Senior Rater):

		(1)  item a (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), an "X" in the "Other (Explain below)" block; and

		(2)  item c (Comment on Performance/Potential):  "[Applicant's] final months as commander of the WTU [Warrior Transition Unit] were characterized by a lack of both good judgement and selfless service.  He allowed personal matters to distract him from focusing on his professional responsibilities as commander.  Aside from these shortfalls in the latter months of command, 


[applicant] is an exceptional and capable officer who has done great things for Soldiers and the Army.  He readily accepted responsibility for his actions and demonstrated integrity, honor, and compassion for others throughout this entire period.  With further mentoring and opportunities for professional and personal development, I know [applicant] will excel.  Continue to challenge him with tough jobs and observe his performance over time before making a definitive statement regarding his potential for promotion.  I have no doubt he will fully succeed as an Army officer and future leader."

	d.  Part II (Authentication):

		(1)  item a and item c, the rater (battalion commander) and senior rater (brigade commander), signed the document on 7 December and 16 December 2010, respectively;

		(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 13 January 2011.

	e.  U.S. Army Medical Activity Bavaria, WTU Bavaria East, Delta Company, memorandum, dated 13 January 2011, subject:  Evaluation Report Appeal,
1 July to 4 November 2010 [pertaining to the applicant], shows the applicant commented on matters relating to the RFC OER.

		(1)  The applicant acknowledged a post-separation relation with a woman prior to being divorced.  He asserted that he demonstrated integrity throughout the period of the OER.  He added that officers in his chain of command mentored him, and provided advice and encouragement to him throughout the rating period and subsequent investigation.

		(2)  He stated he was always dutiful and loyal while in command; always placed his Soldiers and mission first; and the strong organization he built continued after his departure.

		(3)  He alleged that his rater pursued an investigation against him based on information his spouse obtained and provided from a personal home computer.  He also questioned the validity of the investigation due to a lack of sworn statements.  He added that he was not formally counseled regarding his relief of command nor was the relief from command memorandum personally delivered to him.  He concluded by stating the RFC OER did not accurately reflect his personal and professional traits.  Accordingly, he requested a revised report.
4.  An OER for the period 1 July through 4 November 2010 [revised version] shows the applicant was relieved from duty as Commander, Company D, Warrior Transition Battalion - Europe.  It also shows in:

	a.  Part IV (Performance Evaluation - Professionalism):

		(1)  item a (Army Values):

			(a)  line 1 (Honor), an "X" in the "Yes" block;

			(b)  line 2 (Integrity), an "X" in the "Yes" block;

			(c)  line 3 (Courage), an "X" in the "Yes" block;

			(d)  line 4 (Loyalty), an "X" in the "Yes" block;

			(e)  line 5 (Respect), an "X" in the "Yes" block;

			(f)  line 6 (Selfless-Service), an "X" in the "No" block; and

			(g)  line 7 (Duty), an "X" in the "No" block;

		(2)  item b (Leader Attributes/Skills/Actions):

			(a)  line b2 (Skills), block 1 (Conceptual), an "X" in the "No" block;

			(b)  line b3 (Actions), block 2 (Decision-Marking), an "X" in the "No" block;

		(3)  item d (Officer Development - Were Developmental Tasks Recorded on DA Form 67-9-1a and Quarterly Follow-up Counselings Conducted?), an "X" in the "NA" block; and

	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 "Other (Explain)" block;

		(2)  item b (Comment on Specific Aspects of the Performance):  "As [applicant's] rater I directed that he be relieved of company command, which the 


ERMC Commanding General approved due to his inappropriate relationship with a woman not his wife while he was married, although estranged from his wife at the time.  He openly admitted the adulterous relationship which resulted in the pregnancy of the woman not his wife to his Senior Rater which is singly, the proximate cause for his relief for cause from command.  During this short two month rating period, with two additional months of non-rated time during the investigation, [applicant's] personal indiscretions created distractions resulting in his inability to effectively command.  His disregard for military law called in to question his ability to administer command authority while violating the UCMJ himself.  He is an intelligent, dedicated officer with a sincere desire to take care of Soldiers and their families and had done so successfully.  His successful previous year in command provided the foundation for the command to continue at a high rate despite his indiscretions in his personal life which were not at all in keeping with the highest tradition of Army values and is the reason he was relieved.  With supervision and continued close mentorship, [applicant] has value to continue to serve in our Army and I have no doubt that he will succeed."

	c.  Part VII (Senior Rater):

		(1)  item a (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), an "X" in the "Other (Explain below)" block; and

		(2)  item c (Comment on Performance/Potential):  "[Applicant's] final months as commander of the WTU were characterized by a lack of both good judgment and professional focus.  He allowed personal needs to take precedence over his responsibilities as commander.  Aside from these shortfalls in the latter months of command, [applicant] is an exceptional and capable officer who has done great things for Soldiers and the Army.  He readily accepted responsibility for his actions and demonstrated integrity, honor, and compassion for others throughout this entire period.  With further mentoring, I know [applicant] will excel.  Continue to challenge him with tough jobs and capitalize on his strong organizational abilities and planning skills.  Given these opportunities for professional and personal development, [applicant ] will fully succeed as an Army officer and future leader."

	d.  Part II (Authentication):

		(1)  item a and item c, the rater (battalion commander) and senior rater (brigade commander), signed the document on 31 January and 2 February 2011, respectively;

		(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 13 January 2011.
5.  The revised RFC OER and applicant's comments, dated 13 January 2011, are filed in the performance section of his OMPF.

6.  The applicant's appeal was submitted on an Alpha Company, 304th Military Intelligence Battalion, Fort Huachuca, Arizona, memorandum, dated 7 April 2011, subject:  Evaluation Report Appeal, 1 July to 4 November 2010 with 4 enclosures (i.e., original OER, revised OER, email messages (3-7 February 2011), and OER routing history).  The appeal was based on both administrative and substantive error.

	a.  The applicant stated the revised OER was not referred to him even though the Army regulatory guidance states that if the evaluation report is changed but still requires referral, the report again will be referred to the rated Soldier for acknowledgement and new comments.  He was not afforded this opportunity, as indicated by the date of his signature on the revised OER, which is the same date he signed the original version.  This violated the integrity of the electronic signature process and gives the false impression that he chose not to re-sign the OER after it was revised.  In addition, the revised OER was submitted with his original rebuttal comments, which creates the misleading notion that he was afforded the opportunity to respond.  Moreover, the comments do not address the ratings and comments in the revised OER.  He asserts he was denied due process.

	b.  The applicant stated the rater responded to his comments by significantly lowering his overall assessment of the applicant's performance, in particular by the pejorative terms he used in his comments.  He asserted this violates the Army regulatory guidance that provides that an evaluation may not be lowered because of the rated Soldier's comments.

	c.  He provided email messages, dated 3-7 February 2011, subject:  OER, that show the applicant communicated with the battalion adjutant about his OER.  He notified the adjutant on 3 February that he discovered the revised OER had been sent to USA HRC; however, it had not been referred again to him for comment.  The adjutant provided additional information regarding OER processing procedures and advised the applicant he could request a commander's inquiry or appeal the OER.  The applicant indicated he would not continue any further in the matter.

	d.  The applicant also provided an electronic tracking history of the processing of the RFC OER that shows, in pertinent part, the OER was:

* initiated by administrative support personnel on 22 October 2010 
* prepared by rater and senior rater (beginning 22 October)
* opened/saved [signed] by rater on 7 December  [emphasis added]
* opened/saved [signed] by senior rater on 16 December [emphasis added]
* opened by rater, adjutant, applicant, senior rater, and administrative support personnel (between 22 December 2010 and 12 January 2011)
* opened/saved [signed] by applicant on 13 January [emphasis added]
* opened by senior rater, adjutant, administrative support personnel, and rater (between 17 - 31 January 2011)
* opened/saved [signed] by rater on 31 January  [emphasis added]
* opened by senior rater on 31 January
* opened by applicant on 31 January [emphasis added]
* opened by rater on 2 February
* opened/saved [signed] by senior rater on 2 February [emphasis added]
* opened by applicant on 2 February [emphasis added]
* opened by adjutant on 3 February (sent to USA HRC)
* opened by rater on 3 February

7.  The applicant's OER appeal and allied documents are filed in the restricted section of his OMPF.

8.  Army Review Boards Agency, Arlington, Virginia, memorandum, dated
9 August 2011, subject:  OER Appeal (20100701-20101104) [pertaining to the applicant], shows the Officer Special Review Board (OSRB), by unanimous vote, denied the applicant's appeal.  This memorandum is filed in the performance section of his OMPF.  The OSRB Record of Proceedings, dated 28 June 2011, is filed in the restricted section of his OMPF.

9.  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:

* OER and rebuttal comments are filed in the performance section
* OER appeal decisional document is filed in the performance section
* OER appeal and allied documents are filed in the restricted 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.

10.  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.  Chapter 3 (Army Evaluation Principles) provides in paragraph 3-36 (Referral process) that:

	a.  if referral is required, the senior rater will place an "x" in the appropriate box and the completed report will then be given to the rated Soldier for signature and placement of an "x" in the appropriate box;

		(1)  the rated Soldier may comment if they believe that the rating or remarks are incorrect; and

		(2)  the rated Soldier's comments do not constitute an appeal or a request for a Commander's Inquiry.

	b.  If the senior rater decides the comments provide significant new facts about the rated Soldier's performance and that they could affect the rated Soldier's evaluation, they may refer them to the other rating officials.  They, in turn, may reconsider their evaluations.  The senior rater will not pressure or influence them.  Any rating official who elects to raise their evaluation of the rated Solder as a result of this action may do so.  However, the evaluation may not be lowered because of the rated Soldier's comments.  If the evaluation report is changed but still requires referral, the report will again be referred to the rated Soldier for acknowledgment and new comments; only the latest acknowledgment and comments (if submitted) will be forwarded to Headquarters, Department of the Army [emphasis added].


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the RFC OER for the period 1 July through
4 November 2010, and all documents related to appeal of the OER, should be removed from his OMPF because after he provided his comments the OER was revised, increasing the negative aspects of the rater's comments, and the OER was not referred to him again for additional comments and signature.

2.  The evidence of record shows:

	a.  The applicant's rater and senior rater initially completed/signed the RFC OER on 7 December and 16 December 2010, respectively.

	b.  The senior rater referred the RFC OER to the applicant, and the applicant signed the RFC OER and provided comments on 13 January 2011.

	c.  The RFC OER was revised and three of the five "No" responses pertaining to Army Values on the original RFC OER were changed to "Yes" responses, thereby providing a more favorable evaluation.  The rater and senior rater also revised their comments.  Although the applicant contends the rater "increased the negativity in his commentary," this is the applicant's opinion.

	d.  The rater revised/signed the RFC OER on 31 January 2011 and the applicant opened the document to view it on that same date.

	e.  The senior rater revised/signed the RFC OER on 2 February 2011 and it was transferred to the applicant.

	f.  The applicant opened the document to view it on 2 February; however, he did not electronically sign the document or save it to embed his digital signature. Thus, the evidence shows the rating chain properly referred the revised RFC OER to the applicant again for comment.

3.  Therefore, the evidence of record refutes the applicant's contention that the revised RFC OER was not referred to him for review and signature, and the opportunity for him to again provide comments.

4.  The RFC OER, applicant's latest comments, and OER appeal decisional memorandum are properly filed in the performance section of his OMPF.  In addition, the applicant's OER appeal with allied documents, and OSRB Record of Proceedings with allied documents are properly filed in the restricted section of his OMPF.

5.  The applicant provides no evidence of errors, discrepancies, or wrongdoing in the preparation of the contested OER by the rater or senior rater.  There is also no evidence of material error, inaccuracy or injustice in the contested OER, or that would support a conclusion that the OER does not represent the considered opinions and objective evaluations of the rating officials.

6.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110019259



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ABCMR Record of Proceedings (cont)                                         AR20110019259



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