IN THE CASE OF:	  

		BOARD DATE:	  26 July 2012

		DOCKET NUMBER:  AR20120006559 


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 the following DA Forms 67-9 (Officer Evaluation Report (OER)) from his official military personnel file (OMPF):

* 1 January 2005 through 31 December 2005, dated 28 March 2006, hereafter referred to as the first contested OER
* 1 January 2006 through 18 May 2006, dated 18 May 2006, hereafter referred to as the second contested OER

2.  The applicant states:

* the two contested OERs include references to inaccurate character values, attributes, and actions and are based on presumptions
* the substantive error include an overlap of a single event for both OERs
* he was exonerated of all criminal charges in November 2006
* his chain of command used prejudice against him for seeking assistance from behavioral medicine
* his security clearance was suspended and his computer privileges were revoked which led to his inability to perform his duties
* the chain of command presumed the outcome of the charges before the civilian authorities issued their final outcome
* the rater and senior rater did not support their rating with counseling statements and they failed to take into account the restrictions imposed on him
* 
the first contested OER was based on a reprimand he received after the through date of the OER
* the derogatory information was not verified during the period covered by the first contested OER
* upon transfer, his performance returned to its appropriate level; had he been transferred earlier he could have overcome the pressure
* he was ultimately reinstated to full active duty with restored clearance and privileges
* he continued to serve in combat and support the war effort, receiving awards and decorations as well as outstanding ratings and strong recommendations for promotions
* he has professionally grown since the incident 

3.  The applicant provides:

* Appeal memorandum
* Return without action memorandum from the U.S. Army Human Resources Command (HRC)
* General Officer Memorandum of Reprimand (GOMOR) and allied documents
* Officer Record Brief
* Two contested OERs
* Civilian court dismissal order
* Mental Health Evaluation
* Domestic Violence Assessment memorandum
* Certificate of completion of domestic violence awareness workshop
* Self-authored professional career timeline
* Multiple additional OERs and awards throughout his military service
* Officer Elimination Action memorandum
* Termination of Elimination Processing
* DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG))

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 Reserve commissioned officer and he executed an oath of office on 7 January 1995.  He served on active duty in a variety of stateside or overseas assignments and he attained the rank/grade of major (MAJ)/O-4 on 1 September 2005.  At the time of the incident (domestic violence), he was assigned as a battalion S-3 with 3rd Battalion (Engineer), 364th Regiment, 4th Brigade, 91st Division, Fort Lewis, WA.

3.  On 14 November 2005, the applicant was involved in an incident wherein he assaulted his pregnant wife by choking her with his hands.  He was arrested by civil authorities and issued a no contact order.  He was released to military control after establishing conditions for his release.  He was arraigned and his trial date was set.

4.  During January 2006, he received the first contested report – an annual OER that covered 12 months of rated time from 1 January 2005 through 31 December 2005.  He was serving as a Battalion S-3 while assigned to the 3rd Engineer Battalion, 364th Regiment.  His rater was lieutenant colonel (LTC) FSW, the battalion commander, and his senior rater was colonel (COL) WPM, the brigade commander.  The OER shows in:

	a.  Part IVa (Army Values), the rater placed an "X" in the "No" block for the "Courage" and "Duty" values

	b.  Part IVb (Leader Attributes/Skills/Actions), the rater placed an "X" in the "No" block for the "Emotional" attribute, the "Conceptual" skill, and the "Decision Making" and "Motivating" actions.

	c.  Part Va (Performance and Potential Evaluation (Rater) - 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 and entered the following comments:

[Applicant's] duty performance and personal conduct declined significantly during the last quarter of this rating period.  He received a General Officer Memorandum of Reprimand for domestic violence, possessing an illegal firearm, and failing to register his firearms.  His 

actions demonstrated poor judgment, discipline, and a lack of self control and integrity, making him unsuitable for leading Soldiers.  His personal troubles, stress, and anxiety impacted his duty performance through the later part of the rating period, to the point where he was unable to perform his job.  Before this decline, [Applicant's] duty performance was satisfactory.  He managed the Battalion's calendar and coordinated several operational training requirements with the Brigade staff.  He helped prepare plans and orders for executing the force protection and defense live fire exercises, which trained over 1,500 Soldiers for Operations Iraqi and Enduring Freedom.  [Applicant] assisted in planning the construction of a defense live fire range that is now in high demand by Fort Lewis units.  [Applicant's] performance makes his potential for promotion or continued service uncertain.  He should be immediately assigned to a low stress position with minimum responsibility, away from Soldiers.

	d.  Part VIIa (Senior Rater - Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Do Not Promote" block and a second "X" in the "Yes" block to indicate he senior rated 1 officer of this grade (at the time) and that a DA Form 67-9-1 (Officer Evaluation Report Support Form) was received with this report and considered in his evaluation and review.

	e.  Part VIIb (Potential Compared with Officers Senior Rated in the Same Grade), the senior rater rated his potential as "Below Center of Mass" and entered the following comments in Part VIIc (Comment on Performance/
Potential):

I would characterize [Applicant's] level of performance in the early portion of this rating period as average; however, his actions in the last two months have overshadowed that earlier acceptable performance.  [Applicant] received a General Officer Memorandum of Reprimand for possession of illegal firearms, failing to register firearms with military officials, and an off-post arrest for domestic violence.  The events that followed his arrest expose major flaws in his character and demonstrate to me that he lacks the judgment and decision making ability essential to officership.  In addition, the [Applicant's] inability to cope with anger and emotions demonstrates that he lacks the self-control to perform in stressful situations.  I lost confidence in his ability to perform as an officer.  He has no potential for future service and should be dismissed from the Army.  I do not believe he is fit to lead Soldiers.

5.  On 23 February 2006, the applicant was reprimanded by the Acting Commanding General, I Corps, Fort Lewis, WA.  The GOMOR stated that on 14 November 2005, he assaulted his wife by choking her with his hands.  His wife was pregnant at the time of the assault, which developed from a verbal altercation over her pregnancy.  He was arrested and held in a county jail, until posting bond, and he was charged by civilian authorities with two counts of domestic violence.  He also owned 21 weapons, including one illegal sawed-off shotgun, that were not registered at Fort Lewis in accordance with Fort Lewis regulations, although he was twice advised of the requirement to do so.

6.  He acknowledged receipt of the GOMOR on 24 February 2006 and he submitted a rebuttal wherein he stated:

* He pursued an argument with his wife regarding her pregnancy, with the fact that she had had a prior miscarriage
* The argument continued despite his attempt to leave the home and his wife attempted to hit him; so, he pushed her away
* He does not condone his actions and he did not intend to push her
* He was remorseful and regretful of the pain he caused her and others
* He would do his best to right the wrong
* He suffered from serious stress disorder and depression
* He requested the reprimand be filed in his local file 

7.  On 2 March 2006, after considering the circumstances surrounding the reprimand and the applicant's statement, the imposing officer directed the GOMOR be filed permanently in his OMPF.

8.  The OER was referred to him for comments.  He submitted a memorandum on 27 March 2006 wherein he stated he did not dispute the fact that his personal problems led to a major decrease in his performance in the final 2 months and that he accepted all circumstances and he was moving beyond the incident.  He added that during November and December 2005, he sought professional help to correct his character flaws and eliminate the deficiencies noted in the report and specifically targeted his abilities to cope with stress and exercise self-control.  He further included copies of his social work services record, mental health evaluation, and certificates of completion. 

9.  The OER was signed by him as well as his rater and senior rater on 27 March 2006 and it was processed by HRC on 28 March 2006.

10.  During May 2006, he received the second contested report – a change of rater OER that covered 5 months of rated time from 1 January through 18 May 2006.  He was serving as a Battalion Headquarters and Headquarters Company Team Chief while assigned to the 3rd Engineer Battalion, 364th Regiment.  His rater was LTC FSW, the battalion commander and his senior rater was COL WPM, the brigade commander.  The OER shows in:

	a.  Part IVa, the rater placed an "X" in the "No" block for the "Duty" value.

	b.  Part IVb, the rater placed an "X" in the "No" block for the "Mental" attribute, the "Interpersonal" skill, and the "Planning" actions.

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

[Applicants] is not performing at the field grade officer level.  He has not demonstrated the leadership or professionalism expected of an officer at his grade.  In addition, his security clearance is still suspended and he continues to be non-deployable, both of which limit what he can do for this unit and the Army.  In the battalion area during duty hours he at times presented an unprofessional appearance or conducted himself improperly.  He used his computer workstation for personal business or games and often used his government mobile phone for extended personal local and long distance calls, with several calls exceeding 60 minutes.  He was required to participate in the firefighter LPD event, but arrived late at the battalion area and missed movement.  As a project officer, he was responsible for preparing the battalion change of command plan, invitations, and program flyer.  He completed a good flyer on time but failed to complete the change of command plan.  Another section of the battalion completed this task for him.  For the change of command invitations, other Soldiers stepped in to get them completed error-free so that they could be delivered on time.  This level of work was below what is normally expected from a field grade officer.  [Applicant] conducted a sound OIP inspection into basic administrative functions that helped the battalion to identify areas needing improvement, and he made revisions to the battalion's SOP.  He conducted a thorough and complete informal 15-6 investigation on behalf of the battalion commander.  [Applicant] successfully completed mandatory training including Family Anger Control, Men's Accountability Group training, and domestic violence workshops.   His ability to continue serving in 

the military as a field grade officer remains uncertain.  I do not have confidence that this officer is ready to lead Soldiers.  Do not promote.  

	d.  Part VIIa, the senior rater placed an "X" in the "Do Not Promote" block and a second "X" in the "Yes" block to indicate he senior rated 1 officer of this grade (at the time) and that a DA Form 67-9-1 was received with this report and considered in his evaluation and review.

	e.  Part VIIb the senior rater rated his potential as "Below Center of Mass" and entered the following comments in Part VIIc:

[Applicant's] performance during this rating period is not on par with that expected of a field grade officer.  He is being outperformed by NCOs, LTs, and CPTs, and on at least one occasion, others had to complete work that he was assigned but failed to complete.  In addition, I do not believe he has the leadership ability nor the mental strength to face the challenges required of leaders in today's Army.  He has not demonstrated to me that he can perform, even at a mediocre level, as a field grade officer in the command or the Army.  He has no potential for future service and should be dismissed at the earliest opportunity.  

11.  The second contested OER was referred to him for comments but he elected not to submit any.  The OER was signed by him as well as his rater and senior rater on 18 May 2006 and it was processed by HRC on 19 May 2006.

12.  He submitted a court case document that shows a chronology of his arrest, release, and arraignment.  This document shows the charges were dismissed on 6 November 2006.

13.  He submitted:

	a.  A letter, dated 23 October 2006, that shows he completed the court-ordered diversion program and that his charges were recommended for dismissal due to his deployment to Iraq in November 2006.

	b.  Two Mental Health Evaluations, dated 16 January and 8 June 2006, that show he had been in treatment for stress disorder and anger management since 18 November 2005.  He showed a high degree of commitment to the program and a strong motivation to change.  He was prescribed antidepressant medication which along with the therapy made his prognosis excellent. 

	c.  Domestic violence assessment, dated 8 March 2006, that shows he completed anger management training and an intensive outpatient program.  He was very cooperative with the assessment and treatment process and expressed a desire to continue with the services.

	d.  Certificates of completion of domestic violence awareness workshop and family anger control training.

	e.  A self-authored professional career timeline outlining his career, achievements, awards and decorations, and professional assignments.

	f.  Multiple OERs between May 2006 and June 2011, that reflect outstanding performance and recommendations for promotion. 

	g.  Officer elimination action memorandum, dated 22 May 2012, that shows elimination action was initiated against him on 18 January 2012 because of unsatisfactory performance and misconduct, and moral and professional dereliction.

	h.  Termination of elimination processing memorandum, dated 19 June 2012, that shows a Board of Inquiry, conducted on 30 April 2012 and approved on 22 May 2012, ordered his retention on active duty and his elimination case closed. 

14.  Since the incident he:

* served in Kuwait/Iraq from December 2006 through February 2008 and Afghanistan from March 2010 through March 2011
* graduated from the Command and General Staff Officer Course and the Joint Planning Course in 2009
* was awarded two awards of the Bronze Star Medal

15.  On 9 February 2012, he appealed the contested OERs to HRC.  However, HRC officials returned his request without action because it was not submitted within 3 years of the through date.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military 

records to remove an error or injustice.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR will decide cases on the evidence of record.  

17.  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.  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 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 3-23 states any verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's use of verified derogatory information.  For example, when an interim report with verified information is made available to a commander, the verified information may be included in an OER.

	d.  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).

18.  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 arrested by civil authorities on 15 November 2005 for domestic violence.  As a result of his actions, he received a GOMOR that reprimanded him for assaulting his wife as well as possessing illegal firearms and failing to register his firearms despite having been twice told to do so.

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.  

4.  The rating period in the first contested OER was from 1 January 2005 through 31 December 2005.  The GOMOR was given on 23 February 2006.  Although the incidents that led to the GOMOR occurred during the rating period, the GOMOR was not given during the period covered by this OER.  The regulation is clear in that 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. As such, any reference to the GOMOR should be removed from the rater's (Part Va) and senior rater's ratings (VIc) in the first contested OER.

5.  Aside from mentioning the GOMOR in the first contested OER, both contested OERs appear to be correct.  There is no evidence, and the applicant has provided insufficient evidence to show his rater and senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.

6.  By regulation, to support removal 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.  

7.  With respect to his arguments:

	a.  The regulation allows raters to include verified derogatory information on an OER.  In this case, the applicant's assault and subsequent arrest by civil authorities are not disputed.  The fact that they occurred during the rating period of the first contested OER allows rating officials to comment on such action.  The applicant acknowledged his poor judgment and took responsibility for the misconduct. 

	b.  The more important issue is that 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.

	c.  Among the purposes of filing unfavorable information is protection not just for the Soldier's interests but for the Army's as well.  The applicant failed to achieve his responsibility as an officer during the rating periods 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 subsequent OERs he received were very outstanding.  The passage of time did not change what he did during the rating period.

	d.  During the period covered by the second contested OER (1 January 2006 through 18 May 2006), the applicant continued his poor performance.  In fact, this is where his chain of command should have mentioned receipt of the GOMOR since it was received during the period covered by the OER.  But in any case, there is no evidence, and the applicant has provided insufficient evidence, to show that his rater and senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  

	e.  The applicant could have requested a commander's inquiry if he felt his rating officials prejudiced him in any way.  He could have timely appealed his OERs to the Officer Special Review Board (within 3 years).  There is no indication he did so.

	f.  His outstanding performance subsequent to the contested OERs is noted; however, each report is an independent evaluation of a rated Soldier for a specific rating period and essentially "stands alone."

	g.  The counseling the applicant mentions appears to refer to a failure of his rating officials to warn him his actions would result in an adverse evaluation.  However, their ratings appear to have been justified by his record of arrest and failure to follow orders.  He provided evidence to show his charges were recommended for dismissal due to his deployment; the evidence does not show that he was exonerated of the charges.

	h.  With respect to non-compliance with the governing regulation, there is no evidence and the applicant has not provided sufficiently compelling evidence that shows either contested OER is substantively inaccurate and does not accurately reflect his performance or potential or that his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.

	i.  His performance throughout his deployment and the multiple awards he received, as well as the training he completed are all noted.  However, the fact that the contested OER is inconsistent with the other reports he later received or his subsequent achievements has no bearing on the contested OERs.

8.  Aside from his perceived dissatisfaction with his rating, the applicant did not provide clear and convincing evidence to overcome the presumption of regularity and justify the removal of the contested OERs.  Based on the applicable regulations, the contested OERs are both correct as constituted and the applicant did not meet the burden of proof to justify their removal.

9.  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 OERs contain a material error, inaccuracy, or injustice.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief in full.


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 the DA Form 67-9 for the period covering 1 January 2005 through 31 December 2005 the following sentences:  

	a.  Part Va (Performance and Potential Evaluation (Rater) - Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), "He received a General Officer Memorandum of Reprimand for domestic violence, possessing an illegal firearm, and failing to register his firearms."

	b.  Part VIIc (Comment on Performance/Potential), “[Applicant] received a General Officer Memorandum of Reprimand for possession of illegal firearms, failing to register firearms with military officials, and an off-post arrest for domestic violence" and adding the sentence."

2.  The Board further determined that the evidence presented was 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 contested OERs from his official military personnel file.




      ___________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)                                         AR20120006559



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ABCMR Record of Proceedings (cont)                                         AR20120006559



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