IN THE CASE OF: 

		BOARD DATE:	    13 November 2012

		DOCKET NUMBER:  AR20120007222 


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:

The applicant's defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier petition to remove erroneous portions of an Officer Evaluation Report (OER) from his record.

2.  Counsel states reconsideration is warranted based on the following factors:

* the applicant did not disobey a lawful order
* the OER in question did not represent the opinions and judgments of the rating officials
* the applicant's rater had a conflict of interest and she should have recused herself from rating the applicant
* there was a continuing history of theft in the applicant's unit

3.  Counsel provides a 13-page brief and the 30 exhibits identified therein in support of the request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for 


Correction of Military Records (ABCMR) in Docket Number AR20110004182, on 9 August 2011.

2.  With prior enlisted service in the Regular Army, the applicant was appointed a Warrant Officer One (WO1) on 18 February 2005.  He was promoted to Chief Warrant Officer Two (CW2) on 18 February 2007.

3.  On 28 August 2007, the applicant's battalion commander issued a Memorandum of Relief that relieved the applicant of his position as the Communications and Electronics (C&E) Technician for the 317th Maintenance Company.  This memorandum also advised the applicant he would receive a Relief for Cause OER. 

4.  The contested Relief for Cause OER covers the period 28 January through
31 October 2007.  In Part VIIc (Comments on performance potential) of the OER, the senior rater (SR), the applicant's battalion commander, cited the following as the basis for relieving the applicant from his position:

* the applicant's serious deficiencies in day-to-day procedures of the C&E section
* his failure to follow direct orders
* the discovery of accountability and documentation challenges that could have resulted in the loss of sensitive items

5.  The applicant appealed the contested OER through the Army Special Review Board (ASRB) on 18 August 2009.  The ASRB found the evidence submitted by the applicant did not establish clearly and convincingly that the regulatory presumption of regularity should not be applied to the report in question or that action was warranted to correct a material error, inaccuracy, or injustice.  It finally concluded through a unanimous vote of the Officer Special Review Board (OSRB) that the overall merits of the case did not warrant the relief requested.

6.  During the original review of the case by the ABCMR, the Board found the applicant and his counsel failed to provide evidence to support the contentions that preparation of three separate reports rendered the final version invalid given it was properly accepted for filing by Headquarters, Department of the Army (HQDA).  It further concluded there was no evidence indicating the rater was relieved from her duties prior to the completion of the Relief for Cause report on the applicant.  As a result, there was no basis to remove her as the rater.

7.  The Board further found there was insufficient evidence provided to show the evaluation in the Relief for Cause report did not represent the considered opinion 


and objective judgment of the SR at the time.  The Board finally concluded the contested report was prepared by the properly designated rating officials and it is properly filed in the applicant's Army Human Resource Record (AMHRR), formerly known as the Official Military Personnel file (OMPF), in accordance with the governing regulation and that there was no evidence that it was improperly prepared or filed.

8.  Counsel now provides a 13-page brief with 30 exhibits that presents evidence and arguments to support reconsideration of this case.  In his reconsideration brief, counsel argues the applicant did not disobey a direct order and the evidence supporting this fact was not considered by the Board.  He claims the evidence showed the applicant did obey the order to implement a serial number tracking system; however, the battalion commander was not satisfied with the system the applicant created.  He also argues that a third-party statement provided by a master sergeant "H" verifies the applicant obeyed the order.  He also claims the OER did not represent the opinions and judgment of the rating officials and that conflicting statements on the OER by the SR attest to this fact.  He further states the rater had a conflict of interest under governing regulatory guidance and she should have recused herself as the applicant's rater.  Counsel outlines a history of theft at the unit in question and states this history shows serious security deficiencies for which the applicant cannot be held accountable.

9.  Counsel concludes by stating the applicant has submitted new and material evidence that requires alteration of the OER in question to remove improper statements in order to accurately reflect his performance.

10.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System (ERS).  It states that an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, have been prepared by the properly designated rating officials, and represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Requests that an evaluation report in a Soldier's AMHRR be altered, withdrawn, or replaced with another report will not be honored.  The regulation also states that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that clearly and convincingly establishes that the regulatory presumption of regularity referred to in paragraphs 3-39 and 6-7 of this regulation will not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of the earlier Board decision in this case submitted through counsel and the new evidence and/or arguments submitted has been carefully considered.  However, there remains insufficient evidence of a clear and compelling nature that would support not applying the regulatory presumption of regulatory attached to reports accepted for filing by HQDA.  

2.  The evidence and arguments now provided by counsel for this reconsideration request were available to and considered by the Board during its original review, as well as to the ASRB during its appeal consideration of the case.  The fact that counsel recasts the argument for this reconsideration request provides no evidentiary basis to support amendment of the original Board decision in this case.

3.  In view of the foregoing, there remains an insufficient evidentiary basis to support granting the requested relief or to amend the original Board decision.

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 to amend the decision of the ABCMR set forth in Docket Number AR20110004182, dated 9 August 2011.



      _______ _ 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)                                         AR20120007222



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ABCMR Record of Proceedings (cont)                                         AR20120007222



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