IN THE CASE OF:	  

		BOARD DATE:	  24 July 2012

		DOCKET NUMBER:  AR20120008647 


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, in effect, correction of his military records by removing his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 5 June 2005 to 23 May 2006 or in the alternative that the negative comments be removed from the report.

2.  The applicant states, in effect, the report was not referred and he was not given a chance to respond to the negative comments in Part Vb and Part VIIc of the subject OER.  Therefore, he believes the OER should be removed in its entirety or at a minimum the following comments should be stricken or removed from the OER:

	a.  Part Vb:  "Unfortunately this talented officer used poor judgment upon redeployment and was arrested for drinking and driving.  I am confident that he has the determination to overcome this and believe that he has great potential to continue to serve our Army."

	b.  Part VIIc:  "Prior to his decision to drink and drive upon our redeployment from Afghanistan" and "I am confident he has the talent, discipline, and desire to overcome his mistake."

3.  The applicant states his appeal of this OER is based on both administrative and substantive errors.  In addition to the report not being referred to him, he was never convicted of the crime of drinking and driving.  He was not arrested by the Italian police or charged with any crime.  He did not pay any fines nor lose any pay.  He further argues that he did not receive a General Officer Memorandum of Reprimand (GOMOR) because the commanding general believed that his career was worth saving and he would be a valuable addition to the U.S. Army.

4.  The applicant further states that since the subject OER, he has "successfully completed the Signal Officer Advanced Course, the BCT S6 Course, Military Transition Team Course, Become Network Plus, Security Plus, Operational Security Managers Course, Observer Controller Course, and the Certified Information Security System Professional Course."  He also states he was the Executive Officer, Communications Officer, Security Company Advisor, and eventually the Team Leader for the Military Transition Team (MITT).  He "taught 2nd IA Soldiers in basic rifle marksmanship, advanced rifle marksmanship, entry control point operations, movement to contact drills, EPW search and seizure operations, combat convoy operations, and QRF operations."

5.  The applicant provides copies of a:

	a.  Letter, dated 10 April 2012, from the Chief, Evaluations, Selections and Promotions Division, U.S. Army Human Resources Command, Fort Knox, KY, written to the applicant's U.S. Senator;

	b.  Memorandum, dated 17 April 2012, from the applicant to the Chief, Evaluations, Selections and Promotions Division, U.S. Army Human Resources Command, Fort Knox, KY;

	c.  DA Form 67-9 for the period 15 June 2005 to 23 May 2006;

	d.  Letter of Recommendation, dated 3 September 2011, from Task Force 1, Joint Readiness Training Center; and

	e.  Letter, undated, written by a retired lieutenant colonel, U.S. Army Reserve.

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.  At the time of his application, the applicant was in the Regular Army as a captain, pay grade O-3.

3.  The applicant received a change of rater OER covering the period 15 June 2005 through 23 May 2006 for his duties as an Airborne Communications and Electronics Officer with the 1st Battalion, 508th Infantry Regiment in Vicenza, Italy.  His rater was the Battalion Executive Officer, a major, pay grade O-4.  His senior rater was the Battalion Commander, a lieutenant colonel, pay grade O-5.  The OER shows the following entries:

	a.  In Part IId (Authentication – This is a referred report, do you wish to make comments?) no entry is made.

	b.  In Part IIe (Authentication – Signature of Rated Officer) the applicant signed this report and it is dated 7 August 2006.

	c.  In Part IVa (Performance Evaluation – Professionalism – Character – Army Values) the rater placed an "X" in all "Yes" blocks.

	d.  In Part IVb (Performance Evaluation – Professionalism – Leader Attributes/Skills/Actions) the rater placed an "X" in all "Yes" blocks for the appropriate attributes, skills, and actions.

	e.  In Part IVd (Performance Evaluation – Professionalism – Officer Development) the rater placed an "X" in the "NA" block to indicate developmental tasks were not appropriate for recording on a DA Form 67-9-1 or for conducting a quarterly follow-up counseling.

	f.  In Part Va (Performance and Potential Evaluation – Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) the rater placed an "X" in "Outstanding Performance, Must Promote" block and entered appropriate comments in Part Vb (Comment on Specific Aspects of the Performance, Refer to Part III, DA Form 67-9, and Part IVa, b, and Part Vb, DA Form 67-9-1) specific to the applicant's performance which included the comment:  "Unfortunately this talented officer used poor judgment upon redeployment and was arrested for drinking and driving.  I am confident that he has the determination to overcome this and believe that he has great potential to continue to serve our Army."


	g.  In Part Vc (Performance and Potential Evaluation – Comment on Potential for Promotion) the rater stated "He would serve the Army best in OPCF/25."

	h.  In Part VIIa (Senior Rater – Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) the senior rater placed an "X" in the "Best Qualified" block.  Block VIIb (Potential Compared with Officers Senior Rated in Same Grade) contains "No Box check."  Block VIIc (Senior Rater – Comment on Performance/Potential) states:

"Concur with the rater's comments.  Prior to his decision to drink and drive upon our redeployment from Afghanistan, [the applicant] had my complete trust and confidence as my Battalion Signal Officer.  His performance during Operation Enduring Freedom was exceptional - he remains one of the hardest working, most innovative and resourceful Signal Officers with whom I have served.  I believe [the applicant] has learned from his mistake and has gotten the help he needs to ensure this never happens again.  I am confident he has the talent, discipline, and desire to overcome his mistake.  I believe he has much more to offer our Army.  Following his career course, I would assign him to a Signal battalion primary staff position and after proving his competence, leadership, and professionalism to his new commanders, place him in command of a company.  I know he will excel and the Army will benefit from providing this talented officer a second chance."

4.  The applicant provided the following two letters of support:

	a.  The applicant's superior officer, a colonel at the time, wrote that his performance of duty as his Task Force S6 was superior to others he had in the past.  The applicant's skills and capabilities in the signal/automation area were unmatched by any of his peers.  The author concluded that the applicant must be retained and promoted to major.

	b.  A retired lieutenant colonel, who was the former executive officer of the MITT, wrote in an undated letter that it was his pleasure and honor to write this letter of recommendation of behalf of the applicant.  He stated, in essence, that the applicant assumed command of the MITT and held it together, while developing 1st, 2nd, and 3rd levels of maintenance.  He developed vehicle technical inspections, performed security training for the motorized transportation regiment, and helped build the first ever automated motorpool.  He also recommended that the applicant be promoted to major.


5.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  It 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.  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 Corps.  Performance will be evaluated by observing actions, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, 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 3-20b 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 3-34 states any report with negative comments in Parts Vb 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.

	d.  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.

	e.  Paragraph 6-8 states that substantive appeals will be submitted within 3 years of an OER through date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception.  Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered.  As a rule, the likelihood of successfully appealing a report diminishes with the passage of time.
	f.  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.

	g.  Paragraph 6-13c(2) states that correcting minor administrative errors or deleting one official's rating does not invalidate the report.

6.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) governs the composition of the official military personnel file (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 contends that his military records should be corrected by removing the OER for the period 15 June 2005 through 23 May 2006 from his OMPF, or in the alternative, removal of the negative comments contained therein.

2.  The applicant contends the subject OER is defective because it contains administrative error and substantive inaccuracy.  The administrative error consists of the OER not being properly referred to him so he would have an opportunity to respond to the negative comment in Parts Vb and VIIc.

3.  The negative comments in the subject OER referred to the applicant having been arrested for drinking and driving.  The applicant does not deny that he drank and drove a vehicle.  He only argues that he was never convicted of the crime of drinking and driving.  He also contends that he was not arrested by the Italian police or charged with any crime.  He did not pay any fines, lose any pay, or receive a GOMOR, because the commanding general believed his career was worth saving, and that he would be a valuable addition to the U.S. Army.  However, he has offered no substantive documentary evidence in support of his rebuttal argument.

4.  An OER accepted for inclusion in the official record of the Soldier is presumed to be administratively correct.  To justify deletion or amendment of such an OER the applicant must produce clear and convincing evidence showing that the presumption of regularity should not be applied to the report.  In this case, the applicant has failed to provide any such evidence.

5.  The applicant's argument that the report should have been referred to him has merit.  Such an error is considered to be administrative in nature and normally does not rise to a level supporting an amendment to the contents of the OER or to requiring its removal from the record.  It is also a harmless error, as the applicant could have appealed the OER through normal appeal channels at any time, within the 3 years of the through date of the report.  In this case, even though the rater and senior rater gave the applicant very high marks throughout his evaluation, they both felt it necessary to point out his mistake of using very poor judgment in deciding to drink and drive.

6.  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 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)                                         AR20120008647



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ABCMR Record of Proceedings (cont)                                         AR20120008647



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