IN THE CASE OF:	  

		BOARD DATE:  27 September 2012

		DOCKET NUMBER:  AR20120008289 


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 unfavorable information from his Official Military Personnel File (OMPF), which includes the General Officer Memorandum of Reprimand (GOMOR) dated 16 October 2007 and the DA Form 67-9 (Officer Evaluation Report (OER)) for the period 14 April 2007 through 13 April 2008 (hereafter referred to as the contested OER).

2.  He states:

	a.  The GOMOR and contested OER are for the period that covered the incident and these documents affect his continued professional career and potential promotion board outcome.

	b.  He does not believe his letter of rebuttal to the GOMOR was processed at the board of appeals, because there is no record of his rebuttal being submitted, or heard by the ruling board.

	c.  The GOMOR was based on allegations that he lied about his financial delinquencies on his Standard Form (SF) 86 (National Security Questionnaire).  He was also accused of deploying to Iraq on a sensitive mission without informing his chain of command that his security clearance was at risk.  Both of these allegations are untrue.

	d.  He was separated from his wife and awaiting finalization of his divorce.  The debt belonged to his ex-wife which he resolved.  He did not know the debt was delinquent because he did not receive any notices and his wife agreed to assume the duties of all financial matters while he was away.  When he found out about the debt he made a proactive effort to clear-up the problem.  He did not knowingly provide false answers on his SF 86.

	e.  The security clearance investigator did not tell him that financial delinquency was a threat to counter-intelligence or national security.  The investigator only informed him to take steps to clear up his financial record.  His chain of command was already aware of his financial deficiency issues so he had no reason to believe it would prevent him from deploying or affect his security clearance.  His security clearance was not revoked; it was reinstated/renewed in a timely fashion.

	f.  His rebuttal letter to the GOMOR was delayed or never processed due to the Battalion Judge Advocate General (JAG) officer and the unit commander.  He believes there was a conflict of interest because the JAG worked for the battalion commander.  He was not given due process and the JAG officer was biased and unfair.

3.  He provides:

* Letters of recommendation regarding retention on active duty
* Six DA Forms 67-9
* DA Form 1059 (Service School Academic Evaluation Report)
* Knowlton Award Certificate with nomination 
* Army Commendation Medal Certificate
* Rebuttal to the GOMOR with supporting documents
* Memorandum supporting rebuttal to GOMOR

CONSIDERATION OF EVIDENCE:

1.  The applicant's request for removal of the GOMOR, dated 16 October 2007, is acknowledged.  However, based on paragraph 2-5, Section II of Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), the Board will not consider any application if it determines the applicant has not exhausted all administrative remedies.  The portion of the applicant's request for removal of the GOMOR has been directed to the Department of the Army Suitability Evaluation Board (DASEB) for consideration under DASEB Docket Number AR20120016176).  The applicant has been notified of this action by separate correspondence.  Therefore, this portion of his request will not be discussed further in this Record of Proceedings.  

2.  The applicant is currently serving on active duty in the rank/grade of chief warrant officer four (CW4)/W-4.
3.  After completion of prior enlisted service, the applicant was appointed as a Reserve warrant officer on 11 January 1996.  He was promoted to CW4 on 1 January 2007.

4.  The contested report is an annual OER covering the period 14 April 2007 through 13 April 2008.  This report indicates the applicant was rated as the Battalion Adjutant, 742nd Military Intelligence Battalion, Fort Meade.

5.  The contested OER shows:

	a.  the rater is listed as Major R. J. L------, Battalion Executive Officer, and he digitally signed the report on 9 June 2008;

	b.  the intermediate rater is listed as Lieutenant Colonel T. A. C-----, Battalion Commander, and he digitally signed the report on 9 June 2008;

	c.  the senior rater (SR) is listed as Colonel G. J. F----, Brigade Commander, and he digitally signed the report on 8 June 2008;

	d.  the applicant digitally signed the report on 13 June 2008;

	e.  in Part IId, the OER was a referred report and the applicant submitted comments;

	f.  the rater placed an "X" in the "No" box in Part IV (Performance Evaluation – Professionalism (Rater)), b.3. (Actions (Leadership)) for Decision-Making;

	g.  in Part Va (Performance and Potential Evaluation (Rater)), the rater marked the "Unsatisfactory Performance, Do Not Promote" box; 

	h.  in Part Vb (Performance Narrative), the rater listed negative comments such as:

He displayed the intent to accomplish all tasks assigned, but on occasions failed to use sound judgment to meet completion.  In
Part IV b.3.2. Decision-Making, [the applicant] received a NO because he unauthorizedly signed a DA-31 as the company commander and put a Soldier on leave, he unilaterally withheld Soldier actions from processing (a deferment and a branch transfer), and he inserted himself into the Red Cross message process that delayed the information getting to the commander and the Soldier.  He was formally counseled with respect to these instances.  [The applicant’s] questionable decisions are not in keeping with expectations of a senior warrant officer.

	i.  in Part Vc (Potential for Promotion Narrative), the rater stated:  Lapses of sound judgment and making correct decisions affects his potential to fully perform as a CW5; and 

	j.  in Part VIIa and c (Senior Rater – Comment on Performance/Potential), the SR assessed the applicant as "Fully Qualified" and made the following comments:

[The applicant’s] performance of duty as the Battalion S1 was satisfactory.  [The applicant] approached his duties with enthusiasm and met mission requirements with minimal guidance.  He established systems to manage Soldier personnel actions and worked energetically to accomplish the missions, although he was hindered by his inability to communicate effectively with his chain of command and to function as a team player.  [The applicant] has exceptional technical abilities and skills to serve and perform effectively at his current grade.  I would assess his potential for future advancement to be limited.

6.  A review of the applicant's military record in the interactive Personnel Electronic Records Management System (iPERMS) revealed the GOMOR and allied documents and the contested OER were filed on the performance section of the applicant's OMPF.

7.  On 23 February 2012, he submitted a request to the DASEB for removal of Unfavorable Information from his OMPF (which was apparently never received by the DASEB at that time).  He reiterated the arguments he made in his application to this board and stated:

	a.  the intended purpose of this GOMOR has been served and transfer of this letter would be in the best interest of the Army;

   b.  he received the referred OER following the imposition of the GOMOR;
   
   c.  more than 5 years have elapsed since he received the GOMOR and he has lived a professional life and tried hard to be the epitome of an officer:

		(1)  he has maintained a stellar record and developed a skill set that is important to the U.S. Army; and

		(2)  he believes his work and performance are a key and a significant indicator outlining his accomplishments.

	d.  his chain of command has fully endorsed this actions and stands behind his rebuttal; and

	e.  he also requests reconsideration for promotion. 

8.  He submitted the following documents to the DASEB for removal of unfavorable information concerning his OER from his record:

	a.  five letters of recommendation for retention on active duty from civilian and military personnel attesting to the applicant's skills and duty performance;

	b.  six OERs indicating the SR assessed him as "Fully Qualified" on the contested OER and "Best Qualified" with recommendations for promotion on the reports ending 6 June 2009, 6 June 2010, 1 April 2011, 31 October 2011, and
29 February 2012;

	c.  one DA Form 1059, dated 21 May 2010, indicating he completed the Warrant Officer Senior Staff Course on 21 May 2010;

	d.  a certificate, dated 23 April 2011, and award nomination, indicating he received the Knowlton Award for demonstrating high standards of integrity, moral character, professional competency and selflessness, and he contributed significantly to the promotion of the Military Intelligence Corps;

	e.  award certificate, dated 27 June 2010, indicating he was awarded the Army Commendation Medal for exceptional service while assigned as a SIGINT (Signals Intelligence) Analyst Technician; and

	f.  statement from an Army Trial Defense Attorney, dated 25 October 2007, to the U.S. Army Intelligence and Security Command, Fort Belvoir, VA, attesting the GOMOR and conclusions of Army Regulation 15-6 and its recommendation were legally insufficient.

9.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  This includes the DA Form 67-9.

   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.  Consideration will be given to the following:  (a)  the relative experience of the rated officer; (b) the efforts made by the rated officer; and (c)  the results that could be reasonably expected given the time and resources available.  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.  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 HQDA.

   b.  Paragraph 3-36 states 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 Soldier 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 Soldier.

	c.  Paragraph 3-36 also states substantive evaluation report appeals must be submitted within 3 years of the through date of an OER.

10.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and Army personnel qualification records.  Paragraph 2-4 states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by, among other agencies, the ABCMR and DASEB.

11.  Table 2-1 of Army Regulation 600-8-104 states an OER will be filed in the performance section of the OMPF and case correspondence relating to a denied evaluation report appeal action will be filed on the restricted section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided sufficient evidence to show the contested OER was not processed in accordance with applicable laws and regulations.
2.  The contested OER does not reference the GOMOR that was finalized and approved for placement in his OMPF.

3.  The applicant has not provided sufficient evidence to show the ratings on the contested OER were in error or that they were not the opinions and objective judgments of the rating officials at the time the report was rendered.  Further, he has not provided any compelling evidence to refute the ratings and evaluations rendered by the rating officials.

4.  The applicant has not provided sufficient evidence showing the contested OER was inaccurate, unjust, or otherwise flawed.  Therefore, there is an insufficient evidentiary basis for removing the OER from his OMPF or reconsideration for promotion.

5.  It was the applicant's responsibility to know his financial status.  It was not the security investigators responsibility to tell him that his financial status could jeopardize his security clearance.

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)                                         AR20120008289



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ABCMR Record of Proceedings (cont)                                         AR20120008289



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