IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20120004499 


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 a Relief for Cause Officer Evaluation Report (OER) he received for the period ending 20070720 from the Performance (P) to the Restricted (R) portion of the Official Military Personnel File (OMPF).

2.  The applicant states he received a General Officer Memorandum of Reprimand (GOMOR) and Relief for Cause OER in July 2007 based on a Driving Under the Influence (DUI) offense.  He states he appealed the GOMOR and OER in June 2009 through the Department of the Army Suitability Evaluation Board (DASEB) and in September 2009 he received correspondence from the DASEB indicating the GOMOR had been moved to the R portion of his OMPF; however, the OER would remain in the P portion of the OMPF.  He claims that because the OER has not been moved he has been passed over for promotion 4 times despite having outstanding OERs and recommendations for promotion from general officers.  He states it is his belief his military record is unjust because he was not given a change to move forward and correct the mistake he made.  He claims the promotion boards do not take into account that although the DASEB took favorable action on his appeal, the appeal was not a full appeal of the OER from the incident which has prevented him from being promoted despite outstanding performance after the incident. 

3.  The applicant provides the following documents in support of his application:

* DASEB Record of Proceedings (ROP)
* Letter to President of the Promotion Board
* Last 6 OERs
CONSIDERATION OF EVIDENCE:

1.  The record shows the applicant was commissioned a second lieutenant (2LT)/O-1 on 14 September 2000.  He was promoted to first lieutenant/0-2 on 14 March 2002, and to captain/0-3 on 1 February 2004.  

2.  On 6 July 2007, while serving as a company commander in Germany, the applicant was cited for DUI by the German police.  As a result of this incident he received a GOMOR on 20 July 2007.  He was also removed from command and received a Relief for Cause OER.  The Relief for Cause OER is not on file in the interactive Electronic Personnel Management System (iPERMS) record available to the Board and was not provided by the applicant.  

3.  On 20 August 2009, the DASEB considered the applicant’s appeal to transfer the GOMOR he received to the R portion of the OMPF and unanimously voted to transfer the GOMOR to the OMPF.  There is no reference made to the DASEB considering action regarding the OER.

4.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies and procedures for completing evaluation reports that support the ERS.  It also provides guidance regarding redress programs including commanders' inquiries and appeals.  Paragraph 3-39, provides the basic rule applicable to modifications of previously-submitted reports.  It states, in pertinent part, that an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also states that requests that a report that has been accepted for filing in an officer's record be altered, withdrawn, or replaced with another report will not be honored.

5.  Chapter 6 of the evaluations regulation contains the policies and procedures pertaining to managing the evaluation report redress program.  Section III contains guidance on evaluation appeals.  Paragraph 6-11, outlines the burden of proof that must be met to support a successful evaluation report appeal.  It states the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that clearly and convincingly establishes that the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration 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, not merely proof of the possibility of administrative error or factual inaccuracy.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to transfer the Relief for Cause OER he received in July 2007 to the R portion of the OMPF has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also states that requests that a report that has been accepted for filing in an officer's record be altered, withdrawn, or replaced with another report will not be honored.  To justify deletion or amendment of a report, the appellant must produce evidence that clearly and convincingly establishes that the presumption of regularity referred to will not be applied to the report under consideration 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, not merely proof of the possibility of administrative error or factual inaccuracy.  

3.  In this case, the applicant does not contest the incident in question nor the validity of the OER in question.  As a result, he fails to provide any evidence indicating the report in question contains material error, inaccuracy, or injustice in the rendering of the report.  As a result, the regulatory burden of proof necessary to support amendment or deletion of the report has not been satisfied in this case.  Transfer of unfavorable information to the R portion of the OMPF while applicable to the GOMOR the applicant received is not applicable to a properly issued and filed OER.  As a result, the applicant’s subsequent outstanding performance is not a basis to find the OER in question is unjust simply because it is properly filed in the OMPF.  Therefore, absent evidence of material error or inaccuracy in the OER in question, there is an insufficient evidentiary basis to support granting 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)                                         AR20120004499



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ABCMR Record of Proceedings (cont)                                         AR20120004499



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