IN THE CASE OF:	  

		BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20120003107 


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 correction of his military records by removal of his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 6 October 2006 through 5 October 2007.

2.  The applicant essentially states the following in a five-page memorandum:

	a.  On 10 March 2011, the Department of the Army Officer Special Review Board (OSRB) denied his appeal requesting removal of the OER.  He believes that denial was unfair and unjust.

	b.  Because he did not have the Commander's Inquiry (CI) at the time, he could not provide it to the OSRB for use in its decision.  He has enclosed it with this application.  He contends that the CI did not indicate any lapse in his integrity but only showed his lack of understanding the rules regarding dependent children and entitlements to basic allowance for housing (BAH) and family separation allowance (FSA).

	c.  He refers to the OSRB Record of Proceedings Analyst's Discussion and Recommendation, paragraph 2a, which addresses the applicant's contention that his rating officials based their accusation of his lack of integrity on the incident involving his receipt of BAH.  He argues that the CI was conducted by his higher commander and it was discovered that he was entitled to a difference in BAH for his daughter until her 21st birthday which was 26 December 2006.  He also argues that based on his discussions with the intermediate rater of the contested OER, he had admitted to failing to live up to Army values according to the intermediate rater.  He asks, "How can the rater and senior rater make reference to the word 'misrepresented' [when] there was no mention of such word in the CI?"

	d.  He refers to the OSRB Record of Proceedings Analyst's Discussion and Recommendation, paragraph 2b, which addresses the applicant's contention that the negative comments on the contested OER that addressed his lack of integrity or that he misrepresented the status of his dependents was nullified by the results of the CI which absolved him of any criminal act.  He argues that in the absence of evidence in the CI that related to the BAH incident, the analyst must presume regularity as it pertains to the integrity comments noted on the contested OER.

	e.  Since the OSRB's decision, he diligently sought and found the CI.  He argues that the CI confirms his contentions made in his request to the OSRB stating the CI concluded he had not demonstrated any intent to deprive the U.S. Government of its funds.  Rather, his actions only showed his lack of understanding.

	f.  He states the rating officials cited him again and again for lacking ethics and integrity and for failing to live up to Army values.  However, the CI concluded he had no wrongful intent in this matter.  He failed to properly recertify his BAH and FSA due to his misunderstanding of the rules.  His failure to act had nothing to do with a lack of ethics or integrity or a failure to follow Army values.

	g.  He asks that this Board put this OER in the context of his entire career and to make a judgment accordingly.  He asks that the OER be removed from his official military personnel file (OMPF) on the basis of fairness and equity.

	h.  He contends that he is a moral officer who made an honest mistake.  He had no wrongful, criminal, or fraudulent intent.  The CI shows that to be true.  Yet, all three rating officials stated again and again that he lacked integrity or, to put it another way, he did have criminal intent.

3.  The applicant provides copies of:

* OSRB Record of Proceedings with enclosures, dated 10 March 2011
* Freedom of Information Act Request with a copy of the CI with enclosures, dated 9 January 2012
* DA Form 4037 (Officer Record Brief (ORB))
* four OER's covering the period 6 October 2008 through 30 November 2011
* DA Form 1059 (Service School Academic Evaluation Report) dated 12 August 2011
* memorandum of support, dated 31 January 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant is a chief warrant officer four (CW4) serving at Fort Bliss, Texas.  His basic active service date is 11 April 1988, indicating he had more than 18 years of military service in 2006.  He was appointed as a warrant officer in 1996 and was promoted to his current rank in 2007.

2.  On 10 March 2011, the OSRB considered the applicant's request to remove the subject OER based on injustice and illegalities.

	a.  The rating officials accused the applicant of a lack of integrity based on an incident that occurred on 24 September 2007 in reference to BAH.

	b.  The applicant stated he admitted to the intermediate rater that he had not lived up to the Army values.  Therefore, he questioned how he could later be found to have "misrepresented" the status of his dependents, especially when there was no mention of such in the CI.

	c.  The applicant further argued that the issue of integrity was never mentioned to him in relation to the BAH incident.

	d.  The contested OER contained the following entries:

* Part IVa.2 (Army Values – Integrity) shows the rater placed an X in the NO box
* Part IVb3.8 (Building) shows the rater placed an X in the NO box
* Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His Potential for Promotion), the rater placed an X in the unsatisfactory Performance, Do Not Promote box
* Part Vb (Comment on Specific Aspects of the Performance), the rater stated –

* the applicant had a "well concealed moral and ethical lapse during the entire rating period that overshadowed his accomplishments."
* "…during a BAH recertification it was discovered that [Applicant] misrepresented the status of his dependents and received unauthorized pay entitlements in the amount of $39,840.00."
* "His lapse of judgment has undermined this command's emphasis on fostering an ethical climate."

* Part Vc (Comment on Potential for Promotion) shows the rater stated –

* "Retain at current rank."
* "Questions as to the moral judgment and ethical integrity remain problematic for any near-term consideration of positions of greater responsibility or authority."

* Part VI (Intermediate Rater) shows the intermediate rater stated –

* "Do not consider for promotion to next higher rank, positions of greater responsibility nor [sic] supervision of more junior personnel.
"[The applicant's] prolonged receipt of unauthorized entitlements demonstrated a clear lack of moral judgment, ethical behavior, and personal oversight of both his financial and personal matters."
* "…his induced admission of failing to live up to the Army value of integrity, and the continuing impact of its effects on the morale and work climate of the program, undermines team integrity, cohesion and good order and discipline."

* Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) shows the senior rater placed an X in the Do Not Promote box
* Part VIIb (Potential Compared with Officers Senior Rated in the Same Grade), the evaluation reflects, "Below Center of Mass, Retain."
* Part VIIc (Comment on Performance/Potential) shows the senior rater stated –

*  "…the benefits of his actions are obscured and undermined by his failure to live by our Army's values."
* "His misrepresentation of dependents' status resulted in unauthorized receipt of $39,840.00 in pay entitlements."
* "[Applicant's] improper actions clearly demonstrate behavior inconsistent with that expected of a senior U.S. Army Warrant Officer or any member of the U.S. Army."
* "Fallout from his actions continues to undermine team integrity and cohesion."
* "Do not consider for promotion or positions of greater responsibility or authority."

	e.  Based on unofficial email communications, the OSRB analyst determined the applicant's argument was insufficient to validate his contention that the CI 


findings nullified the remarks in his OER that he lacked integrity or misrepresented the status of his dependents.

	f.  In the absence of the CI, the applicant's arguments could not be validated.

	g.  The OSRB determined the applicant had not provided clear and convincing evidence which shows the ratings on the contested OER were in error or were not the considered opinions and objective judgments of the rating officials at the time the report was rendered.  Additionally, there was no evidence in the available records and the applicant had not provided any evidence showing the contested report was inaccurate, unjust, or otherwise flawed.

	h.  Accordingly, the OSRB denied the applicant's request to remove the OER from his OMPF.

3.  A review of the CI provided by the applicant clearly shows the following conclusions and recommendations:

	a.  Allegation 1 – he improperly collected BAH at the with-dependents rate – substantiated,

	b.  Allegation 2 – he improperly withheld $34,039.12 of U.S. funds by larceny and wrongful appropriation – unsubstantiated,

	c.  Allegation 3 – he improperly collected FSA – substantiated, and

	d.  Allegation 4 – he improperly withheld $5,800.00 of U.S. funds by larceny and wrongful appropriation – unsubstantiated.

	e.  Recommendations – the applicant should receive a letter of concern from his commander and the finance office and the appropriate offices should deal with changing processes and policies to prevent recurrences.

4.  On 13 December 2007, the applicant submitted a memorandum in response to the referral of the subject OER.  The applicant stated that after the conclusion of the CI, a letter of concern was given to him by his commander.  In that letter, the commander stated he was extremely concerned with the applicant's integrity and professionalism.  The applicant questioned the commander's concern by asking, "How can someone who did not receive a BAH certification for over 2 years, and when finally receives one, voluntarily reports the incident and takes full responsibility for his failure to update his entitlements, is branded as lacking integrity?"

5.  The applicant has provided a memorandum written by his current battalion commander, dated 31 January 2012.  The battalion commander states he arrived in the battalion in October 2008.  Since his arrival, the applicant has continued to display unblemished integrity in the planning, collecting, processing, and dissemination of intelligence against terrorist groups operating throughout Colombia and the world.  The applicant's professionalism and personal conduct continue to set the highest standard for the Soldiers he leads within the battalion and for the intelligence experts he works amongst in both Southern and Northern Commands.  The battalion commander also states the applicant has repaid his debt of $34,430.50 he erroneously accrued due to a misunderstanding of dependency status.  This initiative to repay his debt is consistent with Army values and demonstrates his perseverance to correct personal errors upon discovery.  The applicant displays the utmost integrity and remains an invaluable member of the battalion.  The battalion commander recommends removing the aberrant OER from the applicant's OMPF and allowing the applicant to compete for promotion unencumbered by this OER.

6.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies and tasks for the Army’s Evaluation Reporting Systems.

	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, counseling forms, and as explained in the governing pamphlet.  Consideration will be given to the following:

* the relative experience of the rated Soldier
* the efforts made by the rated Soldier
* the results that could reasonably be expected given the time and resources available

	b.  Paragraph 1-9 also states potential evaluations will be performance-based assessments of the rated Soldiers of the same grade to perform in positions of greater responsibility and/or higher grades.  Assessment of potential will apply to all officers, regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty; this assessment is continually changing and is reserved for Headquarters, Department of the Army (HQDA).

	c.  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.

	d.  Paragraphs 6-3 and 6-4 state the primary purpose of a CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.  However, in these after-the-facts cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.

	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.

7.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his military records by removal of his OER for the period 6 October 2006 to 5 October 2007.  He contends that the CI does not indicate any lapse in his integrity but only showed his lack of understanding the rules regarding dependent children and entitlements to BAH and FSA.

2.  The applicant admits his commander determined that a letter of concern was appropriate as a result of the CI.  The applicant further admits the commander stated he was extremely concerned with the applicant's integrity and professionalism.

3.  A review of the CI clearly shows the investigator did not make any comments specifying any lapse of integrity or professionalism.  However, the applicant was and is a senior warrant officer and, as such, should have been fully aware of his authorized entitlements to BAH and FSA.

4.  Furthermore, the CI is used to allow for additional command involvement.  It does not dictate the subjective evaluations of the rating chain.  In this case, there appears to have been a clear concern by all members of his rating chain and the unit commander with regard to his failure to properly make finance aware of his dependent's changing status.  The applicant has not provided any evidence that convincingly shows the rating chain erred in their evaluation.  Simply because the CI did not address the issue of integrity does not mean the members of the rating chain are prohibited from addressing the issue as they saw it.

5.  The applicant has asked the Board to put the subject OER in context with his entire career and make a judgment accordingly.  When considering his entire military career, it is unreasonable to conclude that a senior warrant officer with more than 18 years of military service did not have a complete understanding of his entitlements.  At a minimum, he should have known he was required to notify finance when the status of his dependents changed.  It is this failure that most likely prompted his commander and members of the rating chain to be concerned about a lack of integrity.

6.  The memorandum of support is not sufficiently convincing to overcome the applicant's previous lack of integrity.  The memorandum clearly states the applicant's integrity has been unblemished since the battalion commander's arrival in 2008.  This is nothing more than what is expected of a senior military warrant officer.  However, it does not change the events that occurred during the previous years.

7.  In view of the above, the applicant's request should be denied.

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 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)                                         AR20120003107



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ABCMR Record of Proceedings (cont)                                         AR20120003107



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