IN THE CASE OF:	  

		BOARD DATE:	  22 March 2012

		DOCKET NUMBER:  AR20110022522 


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)) for the period 1 June 2007 through 31 May 2008 and a general officer memorandum of reprimand (GOMOR), dated 28 October 2008, from his official military personnel file (OMPF).  He further requests to have Part VIIc of the contested OER masked if the OER cannot be removed in its entirety.

2.  The applicant states, in effect, the OER is defective on the basis of administrative error, substantive inaccuracy, and unjustness.

	a.  The OER contains a negative comment in Part VIIc requiring referral of the OER to him.  The senior rater committed an administrative error by failing to mark Part IId with an "X" to indicate a referred report.  Furthermore, the OER was not mailed to him so he could exercise his right to comment and to have his comment filed with the report.

	b.  The applicant contends that the investigation into the allegations of the misconduct stated in the OER did not commence until 22 July 2008 after the ending date of the report.  Even though his senior rater knew about the misconduct, it had not been verified.  Therefore, the comment on the OER is improper and unjust.

3.  The applicant further states, in effect, the GOMOR resulted from an investigation that was defective and lacked both thoroughness and impartiality.

	a.  The findings were not supported by evidence in the record.  The evidence that was used did not meet the burden of proof required by regulation.

	b.  The gist of the investigation concerned him booking personal off-duty travel to see his family on weekends.  He contends that when he booked this travel, he told the booking agent that he was an active duty Reserve member taking personal travel.  He was subsequently given a "military leisure" rate, which is common in the airline industry.

	c.  However, unbeknownst to him, he was actually receiving a "Government Services Administration (GSA) City Pair Program" rate.  This rate is reserved for official travel and requires a government travel card (GTC).

	d.  He contends that he never asked for a city-pair rate, never implied he was on official travel, and never presented or was asked to present a GTC.  He further contends that he had no knowledge of city pairs and did not possess a GTC.

	e.  He contends that a local United Airlines employee stated in an email that the improper fare was an internal airline issue whereby the agent did not follow the rules prohibiting the use of a personal non-government credit card for the purchase of a government fare.  The email was to serve as official notice that no further action was pending and the airline had closed the case.

	f.  With regard to the investigating officer (IO), the applicant contends:

* the IO incorrectly stated he had refused to remit payment for the debt to the airline despite the fact that the airline considered the case closed
* the IO never determined or proved the debt existed
* the IO acknowledged "contradictions" by the airline personnel regarding the type of fare used and the calculations of rates
* the only evidence in the investigation suggesting he did anything wrong is an unsupported hearsay statement from an airline employee asserting he solicited travel agents for city-pair rates
* the IO knew his travel was personal and paid for with a personal credit card making it factually incorrect to accuse him of not complying with the requirement to provide a GTC and travel orders
* the IO never proved or provided any evidence showing he did or did not do certain acts that constituted conduct unbecoming
* the IO stated he should have asked whether he was receiving the city-pair rate or a military discount rate but does not cite a directive or regulation making it a duty to grill the booking agent to ensure the agent is doing his or her job properly
* the IO states as fact that the applicant was asked for his GTC indicating the airlines thought he was on official travel orders to receive the city-pair rate which was untrue and unsupported by any evidence
* the IO found there were significant discrepancies in the reservation process
* the IO stated the reservation agent needed to input a special code in order to display the government tariff that lists government fares
* the IO never interviewed him to get his side of the story
* the IO trusted the uncorroborated assertions of others who were working for a "for-profit" corporation
* the IO made findings that were unsupported by evidence and ignored the admitted fault and negligence of United Airlines
* the IO ignored the fact that there was no evidence showing he ever did anything to get a fare to which he was not entitled

	g.  The applicant further states he continually maintained ethical standards, character, and selfless service expected of a U.S. Army officer.  His total focus was on mission performance.  He is personally disappointed that his judgment was questioned without evidence and that resources were consumed during the investigative process.  He is even more disappointed that a flawed and apparently biased investigation was approved and then used against him.

4.  The applicant provides copies of:

* subject OER
* subject GOMOR
* OER communication from the U.S. Army Human Resources Command (HRC)
* HRC Notice of Show Cause
* Notice of OMPF Filing Decision
* Army Regulation 15-6 (Procedures for Investigating Officers and Boards or Officers) Investigation
* Email, dated 5 June 2008
* Army Regulation 15-6 counter comments
* four letters of support

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was a mobilized U.S. Army Reserve (USAR) officer serving on active duty in the rank of lieutenant colonel/
pay grade O-5.



2.  The applicant received an annual OER covering the period 1 June 2007 through 31 May 2008 for his duties as a logistics staff officer at the Pentagon, Washington, DC.  His rater was the Chief of the Distribution Division, a civilian in the grade of GS-15.  His senior rater was the Director, Force Projection and Distribution, a civilian in the grade of SES-4.  The OER shows the following entries:

	a.  In Part IIa (AUTHENTICATION – NAME OF RATER) and Part IIc (AUTHENTICATION – NAME OF SENIOR RATER) each official's name is entered and dated 14 November 2008 and 15 December 2008, respectively.

	b.  In Part IId (AUTHENTICATION – THIS IS A REFERRED REPORT, DO YOU WISH TO MAKE COMMENTS?) no entry is made.

	c.  In Part IIe (AUTHENTICATION – SIGNATURE OF RATED OFFICER) no entry is made.

	d.  In Part IVa (PERFORMANCE EVALUATION – PROFESSIONALISM – CHARACTER – ARMY VALUES) the rater placed an "X" in all "Yes" blocks.

	e.  In Part IVb (PERFORMANCE EVALUATION – PROFESSIONALISM – LEADER ATTRIBUTES/SKILLS/ACTIONS) the rater placed an "X" in all "Yes" blocks for the appropriate attributes, skills, and actions.

	f.  In Part IVd (PERFORMANCE EVALUATION – PROFESSIONALISM – OFFICER DEVELOPMENT) the rater placed an "X" in the "NA" block to indicate developmental tasks were not appropriate for recording on a DA Form 67-9-1 or for conducting a quarterly follow-up counseling.

	g.  In Part Va (PERFORMANCE AND POTENTIAL EVALUATION – EVALUATE THE RATED OFFICER'S PERFORMANCE DURING THE RATING PERIOD AND HIS/HER POTENTIAL FOR PROMOTION) the rater placed an "X" in the "Outstanding Performance, Must Promote" block and entered appropriate comments in Part Vb (COMMENT ON SPECIFIC ASPECTS OF THE PERFORMANCE, REFER TO PART III, DA FORM 67-9, AND PART IVA, B, AND PART VB, DA FORM 67-9-1) specific to the applicant's performance with no apparent negative statements.

	h.  In Part Vc (PERFORMANCE AND POTENTIAL EVALUATION – COMMENT ON POTENTIAL FOR PROMOTION) the rater stated, "Promote and select for key logistical assignments."

	i.  In Part VIIa (SENIOR RATER – EVALUATE THE RATED OFFICER'S PROMOTION POTENTIAL TO THE NEXT HIGHER GRADE) the senior rater placed an "X" in the "Fully Qualified" block.  Block VIIb (POTENTIAL COMPARED WITH OFFICERS SENIOR RATED IN SAME GRADE) indicates "Center of Mass."  Block VIIc (SENIOR RATER – COMMENT ON PERFORMANCE/POTENTIAL) states:

[Applicant] is a solid performer.  Adept at briefing Soldiers, general officers, and Congressional staff members, he is an expert in theater distribution and led the G-4's initiatives to improve combat operations support.  He is the Department of the Army go-to officer for getting mine-resistant ambush-protected vehicles from production to the Soldiers.  On several occasions during this rating period, the officer used the government-contracted airfare rate, which is for official travel only, for his personal travel.  If [the applicant] shows he has learned from this error in judgment, promote him with his peers.  Officer not available for signature – no longer on active duty.

3.  On 15 May 2011, the applicant prepared an appeal to the subject OER based on both administrative and substantive errors.  His appeal indicates the only enclosure was a copy of the OER.

	a.  The administrative error was identified as the inclusion of a negative comment in Part VIIc requiring the report to be referred.  However, it was not so identified in Part IId.

	b.  The substantive errors and unjustness were:

* failing to follow mandatory administrative procedures depriving him of due process and fundamental fairness
* including unverified derogatory information
* the later verification of derogatory information does not excuse the substantive inaccuracy and unjustness

4.  On 1 June 2011, the Human Resources Assistant, Appeals and Corrections Section, HRC, Fort Knox, Kentucky, sent the applicant a memorandum stating his appeal was returned without action under the provisions of Army Regulation 
623-3 (Evaluation Reporting System), paragraph 608b, because he had exceeded the time restriction placed on the submission of substantive appeals.

5.  This portion of the ROP will discuss the Army Regulation 15-6 investigation and GOMOR issue.

6.  On 22 July 2008, an IO was appointed to investigate allegations that the applicant had engaged in fraudulent behavior unbecoming of a U.S. Army officer.

	a.  The IO was directed to use informal procedures in conducting his investigation.

	b.  The IO was directed to make specific findings concerning whether the applicant had committed any frauds in violation of Article 132, Uniform Code of Military Justice (UCMJ); engaged in activities that qualify as conduct unbecoming an officer and gentleman in violation of Article 133, UCMJ; and engaged in conduct to the prejudice of good order and discipline or conduct of a nature to bring discredit upon the Armed Forces in violation of Article 134, UCMJ.

	c.  The IO was directed to submit his final report within 15 days.

7.  In a document titled "United Airlines Statement," dated 14 August 2008, the applicant provided a seven-page statement regarding his personal travel between Washington, DC, and Chicago, Illinois.  In summary, he stated:

	a.  In mid January 2008, the applicant began to experience difficulty accessing his account on the United Airlines web site.  He repeatedly called the airlines to ascertain the problem, but customer service could not provide an answer.  He placed 12 calls over a period of 6 days in January, all without an answer to his problem.

	b.  On 18 January 2008, a lady from United Airlines asked the applicant if he has a GTC.  The applicant responded that he did not have a GTC.  He further mentioned to her that the credit card on file with the airlines was his personal card and he had used it for all of his travel.

	c.  On or about 21 January 2008, he received a letter from United Airlines indicating that an audit of his flight activity had been performed.  The tickets were for flights made by United Airlines reservations personnel and were charged to his personal credit card.  The audit resulted in a determination that the wrong fare was used for his travel.  United Airlines was seeking a payment of $1,200.00 to $1,500.00 per round trip ticket vice the $200.00 fare that was charged for each of his trips.  United Airlines contended that the applicant owed the difference in price.

	d.  After receiving the letter discussed above, the applicant immediately contacted an attorney in Chicago to find out what steps he should take to resolve the issue.  He also met with an Army legal assistance attorney.  Because he felt this was a personal issue more than an Army issue, he chose to continue with private legal counsel.

	e.  The applicant contends that it was his intent to seek the most economical round-trip airfare.  He called the United Airlines reservations to book his travel.  He looked to see if economy tickets were available.  He was asked for his Federal identification card or some type of government identification card.  He recalled a few times when the representative told him he could not be ticketed with the credit card that was on file with the airlines because it was not a GTC.  He responded that his travel was personal, not for official business.  He does not remember the airlines making any distinction between "military" and "government" rates during the time of ticketing.

	f.  The applicant stated he routinely saw United Airlines offering round-trip fares in the range of $180.00-$200.00.  These fares were prevalently and frequently advertized.  When he booked his travel, he asked for the most economical transportation.

	g.  On 30 January 2008, he found round-trip fares on four different airlines that ranged from a low of $157.00 to $195.00.  He concluded the United Airlines rates were reasonable.

	h.  In mid March 2008, the applicant contacted an account manager with United Airlines.  The applicant was seeking his input and any insight into the fare structure.  He told the account manager that the travel in question was personal and not for official business.  He also shared the list of tickets that had been previously issued by United Airlines agents.

	i.  On 23 April 2008, the account manager responded to the applicant informing him that the airline would not seek reimbursement because the tickets were issued by United Airlines.

	j.  On 5 June 2008, the account manager assured the applicant that the Security Department at United Airlines would take no further action.  This decision was based on a determination that the airline agent did not follow the rules of the fare.  As a result, the applicant was permitted to use his personal credit card to purchase tickets at prices reserved for purchase only with a GTC.

	k.  The applicant contended that an email sent from the account manager at United Airlines to Headquarters, Department of the Army (HQDA), G-1, contained incorrect statements, conjecture, and speculation.  He made the following comments:

* the initial contact happened in March 2008, not in April 2008
* he does not recall any differentiation made between government and military fare structure
* the United Airlines ticket fraud department contacted him, not the other way around
* he had to call back several times in order to determine market basis, coordinate travel reception, and book the travel
* he preferred to speak with domestic reservations, but whom he spoke with was controlled by how United Airlines chose to route incoming calls
* he was given a government rate by United Airlines which also set the fare price and issued the tickets
* the calculated difference of $22,000.00 using a fully refundable, non-restricted fare shows United Airlines' grab for revenue
* he refused to share his social security number as shown on his government-issued identification card and communicated that his travel was personal
* he did not willfully defraud United Airlines

	l.  The applicant discussed an example of the difficulties experienced when he asked for "bottom-line" pricing from United Airlines.  He contended that the ticketing process was dysfunctional and even United Airlines did not know the best, most economical fare.

	m.  The applicant argued that the use of a "BUA" fare code indicating an economy unrestricted fare is ludicrous.  Even at the time of ticketing, flight restrictions, ticketing restrictions, travel restrictions and rules application were never communicated or expressed options to the ticketing process that would significantly change the prices of a "BUA" fare.

	n.  The applicant discussed a published news article from the Pittsburgh Tribune stating that even military fares are no bargain as they can cost far more than regular tickets.  Congressional action in 2003 urged air carriers to offer active duty military members rates that are comparable to the lowest airfare for ticketed flights.

	o.  The applicant discussed a recently published news article that referred to a bill introduced in Congress that would require reduced-priced fares for service members and relax the rules for snagging standby seats.

	p.  The applicant stated that at no time did he attempt to defraud United Airlines.  He continued to seek the lowest, most economical fare consistent with use of his personal credit card during off-duty hours for personal travel.

8.  The DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) for the subject investigation shows the IO finished gathering evidence on 15 August 2008 and completed his findings and recommendations on 18 August 2008.

	a.  Facts:

* applicant was recalled to active duty as a USAR officer
* applicant was stationed at the Pentagon
* applicant performed duty in the Force Projection and Distribution Directorate within the Office of the Deputy Chief of Staff Army, G-4
* applicant was highly regarded as the "go-to guy" to get the tough jobs done
* applicant was alleged to have travelled on commercial common carrier using the government-contracted rate for personal business
* applicant paid for the subject travel by personal credit card vice the required GTC
* the commercial carrier sought remittance in the amount of $22,913.41
* applicant was previously offered a reduced payoff amount of $15,000.00
* applicant retained the services of legal counsel in January 2008
* applicant decided not to answer any questions related to the subject allegations
* applicant subsequently left a statement, dated 14 August 2008, in the IO's office on 21 August 2008 offering his account of the facts and circumstances
* an United Airlines employee stated under oath that several of the allegations brought forth by the applicant were, in fact, correct; however, there were contradictions with regard to the types of fares and the calculation of rates

	b.  Findings:

* Article 132 (Frauds Against the United States) – the evidence does not support any violation
* Article 133 (Conduct Unbecoming an Officer and Gentleman) – circumstantial evidence indicated the applicant received the government rate on 22 separate occasions – he still had an outstanding debt to United Airlines
* Article 134 (General Article) – circumstantial evidence indicated the applicant did or failed to do certain acts; he displayed a pattern of requesting government airfare rates and then remitted payment using his personal credit card; furthermore, he refused to pay when informed of the $22,913.41 difference in fare cost
* in every circumstance in this particular investigation, the applicant received the city-pair rate for the airline tickets he purchased as opposed to receiving a discounted military rate that is often advertised by United Airlines; he should have asked for clarification regarding these rates
* the applicant was asked for his GTC by the United Airlines customer service representatives indicating they thought he was on official travel and authorized the city-pair rate

	c.  Recommendations:

* the IO recommended appropriate administrative or punitive action against the applicant
* the IO recommended command emphasis to ensure all personnel in the G-4 were knowledgeable of the Army Ethics Program
* the IO recommended remedial training/emphasis on the proper use of the GTC and understanding about and use of travel at government rates

9.  On 28 October 2008, the Assistant Deputy Chief of Staff, G-4 (a major general), issued a GOMOR wherein he reprimanded the applicant for misconduct.

	a.  The GOMOR states the applicant performed personal travel between his duty station in Washington DC, and his home of record in Chicago, Illinois, on 22 separate occasions from 1 December 2006 through 16 December 2007.

	b.  An Army Regulation 15-6 investigation revealed that he had purchased tickets from United Airlines under the government-contracted rate (GSA city-pair fares).

	c  Under the Joint Federal Travel Regulation, only Federal employees or uniformed service members and their respective dependents on official travel may use this program.  Because of the misconduct, United Airlines sought repayment in the amount of $22,913.41, the difference in price of the tickets purchased and the full regular fare.

	d.  The GOMOR further stated that as a senior field-grade officer in a position of leadership, he is held to a higher standard.  His misconduct brought discredit not only on himself, but on the Pentagon and the Army as well.  The use of his position for personal financial gain is the very definition of "conduct unbecoming."

	e.  The GOMOR was imposed as an administrative measure and not as punishment under the UCMJ.  The applicant was directed to acknowledge receipt of the GOMOR and informed that he had 10 days to submit an appeal.

10.  On 28 October 2008, the applicant acknowledged receipt of the GOMOR and indicated he would submit matters on his behalf.

11.  The applicant submitted a rebuttal to the GOMOR, dated 5 November 2008, wherein he offered the following arguments:

	a.  He contended that he continually handled himself using the ethical standards of a U.S. Army officer throughout his tour of duty.  Once informed of the allegation, he immediately informed his chain of command to express his embarrassment and bewilderment.

	b.  He contended that the IO found no basis for any wrongdoing under Article 132, UCMJ, and only circumstantial evidence under Articles 133 and 134.

	c.  He contended that the IO incorrectly stated he worked in the Transportation Policy Division of the Army G-4.  The IO used that assertion as a basis to wrongly conclude he must have known the city-pair rates.

	d.  He stated he had since learned about the requirements for the city-pair rates which include having official travel orders and a GTC.  He contended that he never indicated he was on official travel orders and always used a personal credit card to pay for his personal travel.

	e.  He acknowledged taking 22 flights from December 2006 through December 2007, but at no time did he intentionally misrepresent the purpose of his travel.  He felt he made it clear to ticketing agents at all times that he was a Reserve member on active duty on personal travel and paying with a personal credit card.  He further contended that he accepted fares offered as accurate and as valid fares for a military person traveling on leave or personal business.

	f.  He contended that he had initially compared United Airlines fares with other carriers and thought they seemed comparable.

	g.  He contended that the range of prices he paid for the subject flights were between $200.00 and $225.00.  He provided an enclosure from GSA purporting to show the city-pair rate (unrestricted/capacity controlled) for one-way travel between Ronald Reagan Washington National Airport and O'Hare International Airport was $116.00/105.00.  He also enclosed the following round-trip price information for travel between the same two airports:

* American Airlines – February 8 and 10 (direct flight) – $157.00
* United Airlines – February 8 and 11 (direct flight) – $195.00
* Continental Airlines – Feb 8 and 10 (connecting flights) – $178.00
* Northwest Airlines – Feb 8 and 10 (connecting flights) – $178.00
* United Airlines – variety of dates – $189.00
* Kayak Buzz Daily Alert – weekends September 2008-June 2009 – $191.00-$200.00+

	h.  He contended that the fare largely depended upon which United Airlines agent received the call.  He called the main reservations line and often got an overseas reservations agent.

	i.  He contended that the city-pair rates were not any cheaper than what he could have obtained through Internet capabilities.  Therefore, there is no indication that he was receiving an unethical benefit or entitlement.

12.  The imposing general stated in a memorandum, dated 6 November 2008, that after careful consideration of the facts and circumstances pertaining to the applicant, he directed filing the GOMOR in the applicant's OMPF and in his unit informational personnel file.

13.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  It 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.  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 1-4b(15) states completed OER's must arrive at HQDA not later than 120 calendar days after the through date for USAR evaluations.

	b.  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 NCO Corps.  Performance will be evaluated by observing actions, 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.

	c.  Paragraphs 3-20a and 3-20b 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.

	d.  Paragraph 3-23 (Unproven Derogatory Information) states no reference will be made to an incomplete investigation concerning a Soldier  Reports will not be delayed to await the outcome of an investigation.  When previously unverified derogatory information is later verified, an addendum will be prepared and forwarded to HQDA.

	e.  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 HQDA.

	f.  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.

	g.  Paragraph 6-8 states that substantive appeals will be submitted within 3 years of an OER through date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception.  Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered.  As a rule, the likelihood of successfully appealing a report diminishes with the passage of time.

	h.  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.

	i.  Paragraph 6-13c(2) states that correcting minor administrative errors or deleting one official's rating does not invalidate the report.

14.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) governs the composition of the OMPF and states 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 the DA Form 67-9 is filed in the performance section of the OMPF.

15.  The applicant provides the following four letters of support.

	a.  A retired Army colonel who was a co-worker of the applicant wrote a letter of support, dated 3 October 2011, wherein he states he worked with the applicant from June 2005 through December 2008.  He describes how the applicant was a self-starter who never shirked responsibility.  His integrity and honesty are unquestioned.  In the author's judgment, the applicant was caught in an unfortunate circumstance surrounding a misunderstanding about his personal travel.  As uncomfortable as this process was, the applicant never let down in the performance of his many critical duties.

	b.  A co-worker of the applicant wrote a letter of support, dated 31 October 2011, stating she had worked with him from June 2005 to December 2008.  She expressed how he took charge of one of the Army's major issues concerning the spending of millions of dollars on container detention.  His focus was on what was best for the Army, not on himself.  He was well-regarded among other officers.

	c.  A retired Army colonel who was a co-worker of the applicant wrote a letter of support, dated 2 November 2011, wherein he states the applicant continually placed duty above personal interests and successfully completed all tasks as a result of his strong work ethic and high moral character.  The author contends that after reviewing certain aspects of the investigation and actions of the IO, he believes the conduct and findings should be reviewed for correctness or deleted from the applicant's record.  The author does not believe the investigation was conducted in a professional and correct manner.

	d.  A U.S. Army colonel wrote a letter of support, undated, stating the applicant was absolutely in the top 1 percent of all commissioned officers whom he had the pleasure to know in his 29 years of military service.  He contends that the applicant had many opportunities to take advantage of the system to benefit himself, but – in his demonstrated leadership style – he consistently chose the harder right and set the example by always displaying highly-ethical behavior.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by removing an OER for the period 1 June 2007 through 31 May 2008 and a GOMOR, dated 28 October 2008, from his OMPF.  He further requests to have Part VIIc of the contested OER masked if the OER cannot be removed in its entirety.

2.  The applicant contends that the subject OER is defective because it contains administrative error and substantive inaccuracy and is unjust.  The administrative error consists of the OER not being properly referred to him so he would have an opportunity to respond to the negative comment in Part VIIc.  Furthermore, he contends that the statement is inaccurate and unjust because it is based on an investigation that did not begin until after the end of the reporting period.

3.  The negative comment in the subject OER referred to his personal travel during the rating period for which he was ticketed at a government fare rate for which he was not authorized.  The IO was appointed on 22 July 2008 and completed his report on 18 August 2008.  The OER was signed and dated in November by the rater and in December by the senior rater.  Therefore, it is reasonable to believe the rating officials were aware of the investigation's findings and recommendation.

4.  An OER accepted for inclusion in the official record of the Soldier is presumed to be administratively correct.  To justify deletion or amendment of such an OER the applicant must produce clear and convincing evidence showing that the presumption of regularity should not be applied to the report.  In this case, the applicant has failed to provide such evidence.

5.  The applicant's argument that the report should have been referred to him has merit.  Such error is considered to be administrative in nature and normally does not rise to a level supporting an amendment to the contents of the OER or to requiring its removal from the record.  However, as a matter of equity, and as an exception to policy, that portion of the senior rater's statement in Part VIIc beginning with "On several occasions; and ending with promote him with his peers", should be masked.

6.  As a result of the investigation, the applicant's commander determined that a GOMOR was appropriate.  The applicant submitted a rebuttal to the commander wherein he stated he never requested a government rate and was not responsible for insuring that the airline agent understood his travel was personal, not official business.  He stated he had no intention to defraud the airline.  He further stated that the IO had determined there was no evidence showing he violated Article 132, UCMJ, for fraud and only circumstantial evidence showing he violated Articles 133 and 134, UCMJ, for unbecoming conduct and conduct prejudicial to the good order and discipline of the Armed Forces.  The commanding general indicated he had carefully considered the facts and circumstances pertaining to the applicant's travel and determined the GOMOR was warranted.

7.  The applicant's evidence and arguments in this case are essentially the same as originally considered by the imposing general.  There is no evidence of an error or injustice.

8.  In view of the above, the applicant's request should be denied, with the exception of masking the senior rater's comment as discussed above.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by masking that portion of the senior rater's comments in Part VIIc beginning with "On several occasions" and ending with "promote him with his peers."



2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the subject OER and GOMOR.



      ____________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)                                         AR20110022522



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Record of Proceedings (cont)                                         AR20110022522



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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