BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120010075 


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 a relief-for-cause officer evaluation report (OER) for the period 24 July 2009 through 17 May 2010 and attachments from his record.

2.  The applicant states he believes the OER was unjust and untrue.  Additionally, it has been over 2 years and the OER has served its purpose.  He previously requested its removal and an attached General Officer Memorandum of Reprimand (GOMOR); however, the Board responded that there was no GOMOR located in his record.

3.  The applicant provides:

* the contested OER
* a self-authored Memorandum for Record (MFR), subject:  Relief for Cause OER (attachment), (applicant's name and social security number)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statement to the applicant and provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the U.S. Army Reserve (USAR), Medical Services Corps, as a second lieutenant on 19 December 2003, with prior enlisted service.  He was promoted to captain on 1 June 2007.

2.  On an unknown date he was issued a GOMOR.  However, a review of his official military personnel file (OMPF) on the interactive Personnel Electronic Records Management System (iPERMS) failed to reveal the GOMOR.

3.  On 24 May 2010, he was issued a relief-for-cause OER for the period 24 July 2009 through 17 May 2010 for his duties as a company commander at the Walter Reed Army Institute of Research.  His rater and senior rater were colonels.  The OER shows the following entries in:

	a.  Part II (Authentication), the rater placed an "X" in the "This is a referred report, do you wish to make comments?" block.  The applicant placed an "X" in the "Yes, comments are attached" block.

	b.  Part IVa (Performance Evaluation – Professionalism) (Army Values), the rater placed an "X" in the "No" blocks for honor, integrity, and respect.  The rater placed an "X" in the "Yes" blocks for loyalty, selfless-service, duty, and loyalty.

	c.  Part IVb (Leader Attributes/Skills/Actions), the rater placed an "X" in each "Yes" block.

	d.  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 the "Unsatisfactory Performance, Do Not Promote" block.  In Part Vb (Comment on Specific Aspects of the Performance), the rater entered the following comments:

I lost trust and confidence in [applicant's] judgment and integrity.  I do not believe he can or should be leading Soldiers.  As a result, I have directed that he be relieved of his command.  Prior to the incident that led to this relief for cause action, [applicant] performed in a highly competent fashion.  He initiated a virtual Family Readiness Group that enabled families and Soldiers to maintain communication and awareness while deployed.  He enhanced the unit training program by providing more training opportunities and training sessions that led to higher training completion rates for the organization.  His guidance and 

support was a driving force for the achievement of an excellent Modern Army Combatives unit training program that led to better prepared Soldiers for deployment as well as improved unit esprit de corps.  Based on his performance and his demeanor and duty performance, I placed great trust and confidence in [applicant].  I was gravely disappointed when he conducted himself in a manner that seriously compromised his standing as an officer by maltreating his subordinate and displaying conduct unbecoming an officer.  He subsequently received a GOMOR from the Commanding General for his conduct.

	e.  Part Vc (Comment on Potential for Promotion), the rater entered the following comments, "I do not recommend this officer for promotion."

	f.  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.  In Part VIIb (Potential Compared with Officers Senior Rated in Same Grade), the applicant's potential compared with officers in the grade was not assessed.  In Part VIIc (Comment on Performance/Potential), he entered the following comments:

Concur with rater comments.  [Applicant's] promising initial performance in command was overshadowed by a major lapse in judgment.  I do not recommend him for promotion.

	g.  Part VIId (List Three Future Assignments for Which This Officer is Best Suited), the senior rater entered, "Assistant Battalion S-3, Assistant Battalion S-4, and Clinic Patient Administrative Officer."

4.  The relief-for-cause OER was signed by the rater/senior rater on 19 and 20 May 2010, respectively.  It was signed by the applicant on 24 May 2010.

5.  In an MFR, dated 24 May 2010, the applicant stated:

	a.  He received a relief-for-cause OER due to compromising his standing as an officer by checking on a Soldier in a manner that displayed maltreatment of a subordinate and also displayed conduct unbecoming an officer.  He now knows that he should have handled that situation in a more professional manner.

	b.  He had time to reflect on the situation that occurred and he had learned a great deal from that situation on how to take a more appropriate action when dealing with subordinates and situations of the like.  He would from that point on 
conduct himself in the best manner possible as an officer which he had done prior to that incident.  He would also ensure he took the appropriate actions when dealing with subordinates so as to display the best treatment possible for the situation presented.

	c.  He was a loyal and dedicated Soldier as displayed in his several accolades throughout his career, shown not only within his many awards, but also within his evaluations.  He wished to stay in the military as long as he could. He wished to also progress further through the ranks as far as the military saw fit.

6.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures for the Army's Evaluation Reporting System.

	a.  An OER accepted by Headquarters, Department of the Army (HQDA) and included in the official record of an officer is presumed 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.  The burden of proof in an appeal of an OER rests with the applicant.

	b.  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.  Paragraph 1-10 specifies that except to comply with the regulation, no person may require changes be made to an individual's OER.  Members of the rating chain, appropriate administrative personnel office, or HQDA will point out obvious inconsistencies or administrative errors to the appropriate rating officials.  The regulation also provides the opportunity to request a Commander's Inquiry or to appeal referred/disputed reports.

	c.  Paragraph 2-19 states that when an officer is officially relieved of duties and a relief-for-cause report is subsequently prepared (paragraph 3-58), relief-for-cause reports require referral to the rated officer.  This referral will be completed before taking any of the actions in the following subparagraphs.

	d.  If the relief is directed by the rater or intermediate rater, the senior rater will do the review provided he or she is a U.S. Army officer.  Otherwise, the first U.S. Army officer in the chain of command or supervision above the individual directing the relief will review the reports.

	e.  Paragraph 3-58 states a relief-for-cause OER report is required when an officer is relieved for cause regardless of the rating period involved.  Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his/her performance of duty.  In this regard, duty performance will consist of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards shown in DA Form 67-9, Part IV.  These standards will apply to conduct both on and off duty.

7.  Army Regulation 600-37 (Unfavorable Information) prescribes policies regarding unfavorable information considered for inclusion in official personnel files.  Chapter 7 of the regulation states only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer.  Administrative processing and the appeal of officer and enlisted reports are governed by Army Regulation 623-3.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, Military Personnel Records Jacket, Career Management Individual File, and Army Personnel 
Qualification Record.  It also prescribes the composition of the OMPF.  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 the proper authorities listed in the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that during the period covered by the contested OER the applicant received a GOMOR for maltreatment of his subordinate and displaying conduct unbecoming an officer.  As a result, his rater directed the applicant be relieved of his command and the applicant received a relief-for-cause OER.  He was assessed as "do not promote" by his rating officials.

2.  The applicant submitted an MFR in conjunction with the contested OER wherein he stated he knows he should have handled the situation in a more professional manner and after having the time to reflect on the situation he would take a more appropriate action when dealing with subordinates and situations of the like.

3.  The applicant's contention that the entire OER should be removed from his OMPF has been noted.  Notwithstanding the applicant's acceptance of responsibility for his actions, he has provided insufficient evidence to show the contested report is incorrect, inaccurate, or unjust.

4.  The applicant also has not shown this OER contains any serious administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Finally, there are no justifications to remove an OER after it has been accepted for filing in the OMPF.

5.  It appears the evaluation contained in the contested OER represents the considered opinions and objective judgment of the rating officials at the time of its preparation.  As a result, the contested OER was processed and accepted for filing in his OMPF and there is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity and/or to remove the contested report.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120010075



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ABCMR Record of Proceedings (cont)                                         AR20120010075



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