IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110020622 


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 transfer of his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 1 January 2006 through 31 December 2006 from the performance to the restricted section of his official military personnel file (OMPF).

2.  The applicant states the contested OER has served its intended purpose and that it would be in the best interest of the Army to transfer it to the restricted section of his OMPF.  He adds that the letter of endorsement from the general officer who presided over his Article 15 and issued him a general officer memorandum of reprimand (GOMOR) that led to the referred OER gives evidence that it has served its purpose.

3.  The applicant provides:

* Contested OER
* DA Forms 67-9 for the periods 1 January 2007 through 26 October 2007, 27 October 2007 through 3 June 2008, 4 June 2008 through 27 May 2009, and 29 May 2009 through 28 May 2010
* Certificate showing award of the Meritorious Service Medal
* DA Form 1059 (Service School Academic Evaluation Report)
* Letter of support of lieutenant general (LTG) (Retired) DLD
* Five letters of support from senior officers
* Letter from the Department of the Army Suitability Evaluation Board (DASEB)

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.  The applicant was appointed as a Regular Army Military Intelligence (MI) second lieutenant and he executed an oath of office on 1 June 1996.  He served in a variety of stateside or overseas assignments and he attained the rank/grade of major (MAJ)/O-4 on 1 June 2006.

3.  During the period in question, he was assigned to Headquarters, U.S. Army Special Operations Command (USSOCOM), MacDill Air Force Base, FL, as an MI Team Chief.

4.  On 18 July 2006, an Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation was initiated to investigate allegations that the applicant continued to receive combat zone pay entitlements for 12 months after his return from Iraq.  He had been deployed to Iraq from
16 February to 15 June 2005.  The investigation revealed that after his redeployment from Iraq on 15 June 2005, he continued to receive unauthorized hostile fire/imminent danger pay (HF/IDP) from June 2005 to July 2006.  During questioning and on sworn statements, he admitted to lying to a senior officer when questioned about receiving the entitlement.  He was also observed by another officer blatantly altering his Leave and Earnings Statement on a computer after he was told to present it to confirm or deny the allegations.

5.  On 27 October 2006, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for dereliction in the performance of his duties in that he willfully failed to ensure his HFP/IDP was terminated on 15 June 2005 and making a false and fraudulent claim against the United States in the amount of $2,700.00 of HF/IDP.  His punishment consisted of a forfeiture of pay and a GOMOR.  He appealed but his appeal was denied.

6.  He was subsequently issued a GOMOR by the Commanding General (CG), LTG DLD, U.S. Army Element, USSOCOM, for knowingly and willingly continuing to receive unauthorized HF/IDP and attempting to falsify his LES which was witnessed by another officer.

7.  In December 2006, the applicant received an annual OER which covered 12 months of rated time from 1 January 2006 through 31 December 2006 for his duties as a strategic intelligence team chief.  His rater was a U.S. Navy commander, the Chief – Analysis Section; and his senior rater was a U.S. Army colonel (COL), the Director of Intelligence.  The OER shows the following entries:

	a.  In Part IVa (Performance Evaluation-Professionalism-Values), the rater placed an "X" in the "No" block for all areas (Honor, Integrity, Courage, Loyalty, Respect, Selfless-Service, and Duty).

	b.  In Part IVb (Performance Evaluation-Professionalism-Leader Attributes/Skills/Actions), the rater placed an "X" in the "No" block for the:

* Mental and Emotional attributes
* Conceptual skills
* Communication, Decision Making, Motivating, and Learning actions 

	c.  In Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Unsatisfactory Performance – Do Not Promote" block and entered the following comments in Part Vb:

[Applicant] performed well while working as the Strategic Intelligence Team Chief from Jan – Jul 06.  He was an outstanding analyst, assimilating intelligence information and culling pertinent intelligence products to support daily briefs for senior leadership.  A strong diplomat and advocate, he effectively coordinated between the Strategic intelligence team and other centers of excellence in Center for Special Operations (CSO).  His efforts were instrumental in providing strategic assessments and critical insights to support operations and planning efforts in the Global War on Terrorism.  He adeptly gathered intelligence in support of commander tasking to include trip books, visits read ahead, and intelligence assessments.  In July 2006, it was discovered the [Applicant] had knowingly received combat pay entitlements for over a year.  He was not eligible to receive this money but did not take action to resolve the pay error.  When confronted about the over-payment, he attempted to falsify his leave and earnings statement.  

	d.  In Part VIIa (Senior Rater), the Senior Rater placed an "X" in the "Do Not Promote" and "Below Center of Mass – Do Not Retain" and entered the following comments:

[Applicant] has demonstrated poor judgment and weak moral integrity by fraudulently claiming and receiving excess military pay for over a year.  He wittingly accepted combat entitlements when he was not deployed to a combat zone and took no action to correct the pay error.  When confronted with the evidence of the over-payments, he attempted to falsify his pay records.  These actions underscore that he should not be permitted access to sensitive intelligence information and cannot be trusted to support critical operations and planning efforts.  This officer should not be retained in the Army.

8.  The contested OER was referred to him.  On 15 March 2007, he submitted a response wherein he stated there were multiple lapses on the contested OER and he was neither given initial nor periodic counseling regarding the negative comments.  He added he was not given a copy of his rater's support form.  He also added the OER contained unproven derogatory information and the OER statements did not refer to any type of wrongful act.  He also stated he did not knowingly receive unauthorized entitlements. 

9.  The contested OER was signed by his rating officials on 23 February 2007 and by him on 26 February 2007.  It was filed in the performance section of his OMPF on 3 October 2007.

10.  On 13 September 2011, he petitioned the DASEB to transfer the Article 15, GOMOR, and referred OER to the restricted section of his OMPF.  However, on 29 September 2011, the DASEB notified him that his OER appeal should have instead been submitted to the U.S. Army Human Resources Command and that he should have done so within 3 years of the through date of the OER.

11.  Since his GOMOR and subsequent relief his accomplishments are as follows:

* Received four different OERs, three of which reflect outstanding performance – must promote, fully capable, and center of mass ratings and the last reflects an above center of mass rating
* Awarded the Meritorious Service Medal for meritorious service from
30 November 2007 to 1 June 2010
* Completed the Intermediate Level Education from 9 August 2010 to 10 June 2011

12.  The applicant submitted:

	a.  Letter of recommendation from LTG (Retired) DLD (the GOMOR imposing officer) who opines that the Article 15, GOMOR, and referred OER have served their intended purpose and should be transferred to the restricted section of the OMPF.

	b.  Four letters of support from senior officers who all recommend the derogatory documents be transferred to the restricted section of his OMPF.  The authors describe him as a quality performer and an outstanding officer with character, integrity, and ethics.

13.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  It states that evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

	a.  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, and counseling forms.  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.

	b.  Paragraphs 3-20a and b state each report will be an independent evaluation of the rated Soldier for a specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance or incidents occurring before or after the period covered.

	c.  Paragraph 3-34 states any report with negative comments in Parts Vb, Vc, VI, or VIIc will be referred to the rated officer by the senior rater for acknowledgment and comment before it is sent to Headquarters, Department of the Army (HQDA). 
	d.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

	e.  Paragraph 6-11a states the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions.

14.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Table 2-1 states that the DA Form 67-9 is filed in the performance section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was investigated for receipt of unauthorized financial entitlements for 12 months after his redeployment.  The investigation revealed he was derelict in the performance of his duties in that he willfully failed to ensure his HF/IDP was terminated on 15 June 2005 and making a false and fraudulent claim against the United States in the amount of $2,700.00 of HF/IDP.  As a result of his actions, he received an Article 15, a GOMOR, and a derogatory OER.

2.  The OER contains a listing of the Army values and the dimensions of the Army’s leadership doctrine that define professionalism for the Army officer and apply across all grades, positions, branches, and specialties.  They are needed to maintain public trust, confidence, and the qualities of leadership and management needed to sustain an effective officer corps.  These values and leader attributes/skills/actions are used to emphasize and reinforce professionalism.  They are considered in the evaluation of the performance of all officers.

3.  Unlike a GOMOR, which is primarily used as a tool for teaching proper standards of conduct and performance, an OER is a measure of an officer's performance and potential during a period of time.  In the applicant's case, the contested OER appears to be correct.  There is no evidence, and the applicant has provided none, to show that his rater and senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.

4.  By regulation, to support removal, transfer, or amendment of a report, there must be evidence that clearly and convincingly establishes that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.  The strong endorsement by the GOMOR imposing officer does not change the fact that the contested OER is a reflection of his performance and potential during the period covered.

5.  The quality of service of a Soldier is adversely affected by conduct that is of a nature to bring discredit on the Army or prejudicial to good order and discipline.  As such, there is generally a reluctance to remove or transfer adverse information from an OMPF when it places the applicant on a par with others with no blemishes for promotions, assignments, and other favorable actions.

6.  Among the purposes of filing unfavorable information is protection not just for the Soldier’s interests but for the Army’s as well.  Here, the applicant failed to achieve his responsibility as an officer during the rating period in question.  The fact that he suffered the consequences of his actions does not mean this violation should go unrecorded in his OMPF simply because he believes the OER has served its purpose.  The passage of time did not change what he did during the rating period.

7.  The applicant did not provide sufficient evidence to overcome the "presumption of regularity" and to justify transferring the OER to the restricted section of his OMPF.  His outstanding performance subsequent to the contested OER is noted; however, each report is an independent evaluation of a rated Soldier for a specific rating period and essentially "stands alone."

8.  After a comprehensive review of the evidence in the applicant's OMPF, the applicant’s contentions and arguments, and the evidence submitted in support of his application, other than his dissatisfaction, the applicant did not show, by clear and convincing evidence, that the contested OER contains a material error, inaccuracy, or injustice.  Therefore, he is not entitled to 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)                                         AR20110020622



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ABCMR Record of Proceedings (cont)                                         AR20110020622



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