IN THE CASE OF:	  

		BOARD DATE:  23 August 2012

		DOCKET NUMBER:  AR20120005473 


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:

* a DA Form "69-7" (actually a DA Form 67-9 (Officer Evaluation Report (OER)) be removed from his Official Military Personnel File (OMPF)
* he be reinstated on the fiscal year (FY) 2009 Reserve Components (RC) Lieutenant Colonel (LTC) Army Promotion List (APL)
* he be allowed to appear in person before the Board

2.  The applicant states the OER for the period 20090325 – 20090722 contains statements that are unsupported by fact and are untrue.  In particular, he states his senior rater (SR) described his work and abilities as "substandard."

3.  The applicant alleges the OER was given to him because he submitted a DA Form 31 (Leave Request) with an incorrect leave address.  He explains he was taking leave outside the continental United States (OCONUS) and did not have his leave address when he submitted his DA Form 31.  Once he received his leave address, he forgot to update his DA Form 31.  A commander's inquiry (CI) was initiated.

4.  The applicant provides:

* the subject OER (it was not provided, but was obtained from the Interactive Personnel Electronic Records Management System (iPERMS))
* OER for the period 20080325 - 20090324
* a 19 April 2010 memorandum for record (MFR) from the investigating officer (IO) who conducted the CI into the incorrect DA Form 31
* his DA Form 2823 (Sworn Statement), dated 27 July 2009, given to the IO
* U.S. Army Reserve Command (USARC) Form 91-R (Foreign Travel Briefing Statement)
* Four letters of support

CONSIDERATION OF EVIDENCE:

1.  The applicant is a U.S. Army Reserve (USAR) major (MAJ).

2.  The subject OER covered the period 20090325 – 20090722 while the applicant was serving in a Troop Program Unit (TPU) as a MAJ, Plans Officer for the 181st Infantry Brigade (USAR), Fort McCoy, WI.  It was a change-of-rater OER.

3.  The OER shows the following rater entries in Part IV (PERFORMANCE EVALUATION – PROFESSIONALISM):

	a.  In Part IVa (ARMY VALUES), the rater placed an "X" in all of the "Yes" blocks.

	b.  In Part IVb (LEADER ATTRIBUTES/SKILLS/ACTIONS), the rater placed an "X" in the "No" block for:

* b.2.  (SKILLS – COMPETENCE):

* Conceptual – Demonstrates sound judgment, critical/creative thinking, moral reasoning

4.  The OER shows the following rater entries in Part V (Performance and Potential Evaluation (Rater)):

	a.  In Part Va (EVALUATE THE RATED OFFICER'S PERFORMANCE DURING THE RATING PERIOD AND HIS/HER POTENTIAL FOR PROMOTION), the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block.

	b.  In Part Vb (COMMENT ON SPECIFIC ASPECTS OF THE PERFORMANCE AND POTENTIAL FOR PROMOTION), the rater wrote:

[Applicant] is well intentioned but displays poor judgment.  [Applicant] completed ILE [Intermediate Level Education] during this rating period; shortly after completion he took 10 days leave without informing the chain of command he was going to Russia.  Upon his return he filled the S3 shop in on his sexual encounters while there.  His leadership, knowledge, and low competence are known by both the 181st Infantry Brigade and First Army Div[ision] West leadership.  I have relegated his duties to coordinating within the S3 shop and to only perform those duties that would take the day to complete.  I feel it would be unlikely that [applicant] could improve his performance and feel regrettable [sic] that I have not addressed this sooner.

	c.  In Part Vc (COMMENT ON POTENTIAL FOR PROMOTION), the rater wrote, "He does not perform at the level of a competent major."

5.  The OER shows the following rater entries in Part VII (Senior Rater):

	a.  In Part VIIa (SENIOR RATER – EVALUATE THE RATED OFFICER'S PROMOTION POTENTIAL TO THE NEXT HIGHER GRADE), the SR placed an "X" in the "Do Not Promote" block.

	b.. In Part VIIb (POTENTIAL COMPARED WITH OFFICERS SENIOR RATED IN THE SAME GRADE), the SR rated the applicant as "Below Center of Mass –Retain." 

	c.  In Part VIIc (COMMENT ON PERFORMANCE/POTENTIAL), the SR wrote:

[Applicant] is a nice person but certainly does not exhibit the maturity, professionalism and judgment one would expect of an officer much less one at the field grade level.  He has finished ILE but should not be promoted and certainly not programmed for further schooling.  I have monitored his performance and determined he should not serve the Army and Nation in positions of increased responsibility.  His potential for further service is limited to the needs of the Army.  Officer refuses to sign the evaluation.

6.  The SR recommended three future assignments for the applicant:  "Aviation IP [Instructor Pilot]," "BN [Battalion] Staff Officer," and "BDE [Brigade] Staff Officer."

7.  The OER was digitally signed by the rater and SR on 20090731 and 20091006 respectively.  The applicant refused to sign.  He provided a memorandum, dated 30 September 2009, in which he said he:

* received an "Out-of-Country" brief from the Brigade S2 and assumed the S2 would inform the Brigade XO (executive officer) of his plans
* states he never mentioned "Sexual Exploits," only the places he visited
* he was never formally counseled on his leadership or performance
* he received no long-term tasks only because he was leaving for a new assignment
* the Brigade Commander never even had a conversation with him, so how could he monitor his performance
* if his performance as a major was substandard, why wasn't it mentioned on his previous OER with an end date of 20090325
* the subject OER covered a 4-month period, but he was only present for duty for 2 months

8.  The CI determined the applicant met a Russian woman online in 2008.  During the period 20090629 – 20090710, he planned a trip to Russia to visit his online acquaintance.  In preparation for his OCONUS leave, he prepared a DA Form 31 and a USARC Form 91-R.  At the time of preparation, he used a local Wisconsin address for his leave.  He departed on his leave during the period 29 June 2009 through 10 July 2009 without updating his leave address with an OCONUS Russian address.  Upon his return to work on 13 July 2009, the leave address discrepancy was noted and a CI was ordered.  The applicant, who had transferred from Fort McCoy to Fort Rucker, AL, provided a sworn statement to the IO on 27 July 2009.  The IO, in an MFR dated 19 April 2010, found "…no cause for further inquiry.  The Soldier was verbally counseled on his responsibility as an officer and fully understands the proper procedures for taking leave."

9.  The applicant's OMPF contains a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 17 October 2009.  The reason for the FLAG is an unspecified adverse action.  It was authenticated on 9 November 2009.

10.  The applicant's OMPF contains a FLAG, dated 22 February 2010.  The reason for the FLAG is an "adverse action – elimination or removal from a selection list."  The FLAG further states "PROM SUSP; PARA 3-18a AR 135-155 AND DEPT OF THE ARMY POLICY."

11.  On 19 January 2011, the applicant appealed the subject OER to the Officer Special Review Board (OSRB).  On 14 July 2011, the OSRB denied the appeal.

12.  The applicant's OMPF shows he was twice non-selected for promotion to LTC.  In a letter dated 20 January 2012, the U.S. Army Human Resources Command (AHRC), Fort Knox, KY notified the applicant that, although he was twice non-selected by the promotion selection board, a selective continuation board recommended him for continuation in his present grade (MAJ), and the 


Secretary of the Army approved the recommendation.  The letter states unless he specifically declined continuation, he would be continued to 24 years of service.

13.  AHRC Orders C-05-207038, dated 16 May 2012, assigned the applicant to the Retired Reserve for non-selection for promotion.  The effective date is 1 September 2012.

14.  The applicant's supporting documentation consists of the following:

	a.  USARC Form 91-R, dated 4 June 2007, shows he received a briefing on 4 June 2009 during which he 

* indicated he would visit Russia from 29 June – 10 July 2009
* viewed a Force Protection and Anti-terrorism video
* received a foreign travel briefing
* read Joint Service (JS) Guide 5260 (Service Member's Personal Protection Guide:  A Self-Help Handbook to Combating Terrorism)
* received Graphic Training Aid (GTA) Card 21-3-11 (Individual Protective Measures)

	b.  memoranda from three LTCs who have worked with him and who each attest to his abilities and potential for promotion.  They describe the applicant as having never displayed poor judgment, nor have they ever heard the applicant speak of sex.

	c.  a letter from the Russian woman whom he met online and visited in Russia.  She is now his wife and the mother of his daughter.  She categorically denies the applicant came to Russia on a "sex trip."  She adds her husband would never regale associates with talk of a highly personal nature (i.e., sex) concerning his marriage.

15.  A review of the applicant's OMPF contained on iPERMS reveals:

	a.  in the Administrative portion of his Service File:

* a 23 July 2009 DD Form 93 (Record of Emergency Data) which shows his wife as Renee Jo
* a 4 January 2011 Servicemembers' Group Life Insurance Election and Certificate (SGLV) Form 8286 which shows his wife as Tatiana Yrievna



	b.  in the Evaluation portion of his Performance File, an officer who:

* is "center of mass" or "below center of mass"
* consistently fails to achieve "Outstanding Performance – Must Promote" and "Best Qualified" block checks
* has two referred OERs in his record, one as a company commander
* is not competitive for promotion

16.  Army Regulation 623-3 governs OERs and the OER appeal process.

	a.  Paragraphs 3-39 and 6-7 provide that an OER accepted by HQDA and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Any appeal will be supported by substantiated evidence. An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered.

	b.  Paragraph 6-11 states the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  The evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  For a substantive claim of inaccuracy or injustice, evidence will include statements from third parties.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials [emphasis added].

	c.  Paragraph 6-4 provides that alleged errors, injustices, and illegalities in a rated Soldier’s evaluation report may be brought to the commander’s attention by the rated individual or anyone authorized access to the report.  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.



17.  Army Regulation 135–155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the USAR.  Paragraph 3-18 states the authority for the removal of a name from a promotion list rests with the President for commissioned officers (other than commissioned warrant officers), and the Secretary of the Army (SA) for warrant officers (to include commissioned warrant officers).  If an officer is determined to be ineligible for consideration for promotion, the Commander, AHRC (Office of Promotions, RC) will verify the officer’s ineligibility, explain the basis for the officer’s ineligibility to the SA, and advise the SA to request that the President approve removal or administrative deletion of the officer’s name from the promotion board report or the promotion list.

18.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  It provides applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of the subject OER and reinstatement on the FY 2009 RC LTC APL.

2.  The applicant alleges the referred report is untrue and unsupported by fact, and was given to him because he submitted a DA Form 31 with an incorrect leave address.  He states his SR described his work as "substandard."

3.  The subject OER was given to the applicant due to a change-of-rater, not because of an incorrect DA Form 31; there is no mention he failed to provide a valid leave address on his DA Form 31.

4.  When he met and corresponded with a Russian woman, Tatiana (or Tanya), online in 2008, he was married to Renee Jo.  When he went to Russia to meet Tanya, he was still married to Renee Jo.  When he departed the 181st Division en route to Fort Rucker, Renee Jo accompanied him as his wife according to the 23 July 2009 DD Form 93 contained in iPERMS.  At some later point in time, he divorced Renee Jo and married Tanya according to the 4 January 2011 SGLV Form SGLV 8286.

5.  The rater stated in Part Vb of the subject OER, the applicant displayed "poor judgment" by:

* not informing his chain of command he was going to Russia
* talking about his "sexual encounters" to co-workers in the S3 shop

	a.  Evidence of record shows the applicant notified the Brigade S2 on 4 June 2009 that he was traveling to Russia.  He was required to watch a video, he was briefed, and he received printed information combating terrorism and personal protection.  This evidence directly refutes the allegation he went to Russia without informing his chain of command and the statement should be expunged.

	b.  There is no direct evidence to support or refute the rater's comment telling his co-workers about his sexual encounters in Russia.  His wife, Tanya, states it never happened and he's not the kind of man to regale co-workers with lurid tales of sexual encounters.  However, the evidence of record shows he was married when he began his online relationship and when he traveled to Russia to meet Tanya, all of which brings into question his character and judgment.  The statements referencing poor judgment and sexual encounters should remain.

6.  The applicant has not shown the contested OER should be removed.  His argument to this Board is the same as his argument to the OSRB; it did not measure up then, and it does not measure up now.  His appeal to the OSRB was denied based on insufficient evidence of record or evidence provided by the applicant to show the report was in error or unjust.  Based on the presumption of regularity the report represented the considered opinion and objective judgment of the rating officials at the time of its preparation.  With one exception, the applicant has not overcome his burden of proof to show error, injustice, or inequity; however, that exception – showing he did, in fact, inform his chain of command – is not sufficient to void the entire OER.

7.  The exact nature of the reason for the applicant's removal from the FY 2009 RC LTC APL promotion list is unknown and the applicant has provided no insight into his removal.  It is noted the applicant had two DA Forms 268 in his OMPF, the second showing his removal from a LTC promotion list.  It is also noted his OER file does not support his promotion to LTC and contains two relief-for-cause OERs, one of which was for company command.  It is presumed the provisions of Army Regulation 135-155 were complied with during his removal from the promotion list.

8.  The applicant is not entitled to a personal appearance before the ABCMR.  The facts of the case do not require a personal hearing.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X ___  ___X____  ___X  ___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 deleting from Part Vb  of the contested OER the words, "…without informing the chain of command he was going…"

2.  The Board further determined that 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:

* deleting the entire OER
* reinstating him on the FY 2009 RC LTC APL




      __________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)                                         AR20120005473



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120005473



9


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1