IN THE CASE OF:	  

		BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120010906 


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 correction of his military records by moving his officer evaluation report (OER) for the period from 5 June 2007 to 19 March 2008 to the restricted portion of his Army Military Human Resource Record (AMHRR).

2.  The applicant states the basis of his request is substantive inaccuracy in the subject OER.  He contends that his performance of duty was satisfactory at a minimum and that he accomplished his mission as a counter-narcotics advisor to the Ecuadorian Armed Forces.  He identifies entries in the subject OER that clearly show the report to be a substantially inaccurate depiction of his performance during the rated period.  He also refers to statements made by both of the Defense attachés assigned to the U.S. Embassy at the time.

	a.  The OER entry stating he "willfully disobeyed a lawful order" refers to an order that was not a lawful one.  This is evidenced by a lack of any action under the Uniform Code of Military Justice (UCMJ).  The U.S. Military Group (USMILGP) Commander, his senior rater, and the Navy section chief tried to press for UCMJ action but were recommended not to pursue the action because it was not a lawful order.

	b.  The OER entry stating he "displayed poor judgment by using his assigned government-owned vehicle (GOV) for personal use" demonstrates that he was wrongfully persecuted.  The GOV noted in the OER was not regulated by the same standards as the rest of the USMILGP vehicles.  The GOV in question was not purchased, maintained, or controlled by USMILGP.  The organization that maintained the subject GOV stated that authorized use for the vehicle included any personal use as necessary in support of the assigned mission.

	c.  He contends that statements made by the two Defense attachés demonstrate that his service was acceptable, if not dignified.  He was described as a mature, competent officer who represented the U.S. Army well.  His performance was described as well ensconced with the host nation military and consistently displayed keen insight into the local political-military dynamic.  He was a competent foreign area officer whose relationship with the Ecuadorian Armed Forces was invaluable to U.S. interests.

3.  The applicant provides:

* Policy Letter Number 11 – Use of Government Assigned Vehicles, dated 7 September 2005
* OER for the period 5 June 2006 to 4 June 2007
* email from the Security Assistance Training Management Organization to the applicant, dated 7 February 2008
* letter of support, dated 12 February 2008
* four letters of support, dated 13 February 2008
* two letters of support, dated 14 February 2008
* letter of support, dated 16 April 2012
* letter of support (written in Spanish), dated 24 May 2012
* three letters of support, undated

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 a Regular Army commissioned officer serving in the rank of major/pay grade O-4 with the U.S. Office of Defense Cooperation located in Asuncion, Paraguay.

3.  The subject OER for the period 5 June 2007 to 19 March 2008 is a permanent- change-of-station report.  It was referred to the applicant who provided comments and signed the OER on 16 April 2008.

	a.  Part IVa (Army values) contains "NO" entries for Integrity and Duty.

	b.  Part IVb (Leader attributes/skills/actions) contains "NO" entries for Conceptual and Decision-Making, indicating his failure to demonstrate sound judgment, critical/creative thinking, moral reasoning, or the ability to employ sound judgment, logical reasoning and use resources wisely.

	c.  Part V (Performance and Potential Evaluation (Rater)) shows the rater marked the box indicating "Unsatisfactory Performance, Do Not Promote."  The rater's comments included the following statements:

* he performed unsatisfactorily during this rating period
* he willfully disobeyed a lawful order issued by a superior officer
* he displayed poor judgment by using his assigned GOV for personal use, despite signing a policy letter prohibiting such use
* he failed to report a potentially diplomatically sensitive situation in a timely matter
* he failed to recognize over 700 calls worth over $350.00 placed to a non-official number from his official cellular phone
* he may work better under more direct and constant supervision
* do not promote
* do not recommend for senior service college

	d.  Part VI (Intermediate Rater) stated the applicant had not conducted himself in a professional manner during the rating period.  His misconduct strained military-to-military relationships.  He chose to compromise his integrity and placed personal gain over accomplishing the mission.  The intermediate rater recommended the applicant to not be promoted.

	e.  Part VII ((Senior Rater) marked the box indicating "Do Not Promote."  He rated the applicant's potential as "Below Center of Mass – Retain."  He concurred with the rater and intermediate raters and stated the applicant exhibited serious poor judgment and an inability to appropriately follow guidance on several occasions despite having been counseled both verbally and in writing several times.  He further stated the applicant should only be retained on active duty if he can be assigned to staff positions where he could work in a controlled environment under close supervision.

4.  In a memorandum for the Commander, USMILGP, Ecuador, dated 16 April 2008, the applicant made the following comments concerning the subject OER:

	a.  Concerning willfully disobeying a lawful order, he states that the order was given by the Navy section chief for him to report to the USMILGP at 1200 hours in order to destroy USMILGP communications security.  The order was not perceived as legal due to the fact that the task requested was not within the duty description of a counter-narcotics advisor.  He also states he had received guidance from his rater to conduct required clearing procedures which included an appointment at 1130 hours with the moving company to conduct a household goods moving assessment which conflicted with the 1200 hours reporting time.  As the appointment was made 2 weeks prior, it could not be rescheduled because it would delay the packing dates and negate the approved timeline for departing the country.  An attempt to negotiate with the Navy section chief for a later date to assist in the mission was not heeded.

	b.  Concerning using his assigned GOV for personal use, he states the vehicle in question was not under the control of the USMILGP; rather, it was maintained by the U.S. Army Security Assessment and Training Management Organization (USASATMO).  He contends the USMILGP policy did not apply to the subject GOV.  The applicant further states that when he in-processed in October 2006, he was given verbal instructions from the manager that the vehicle was for his use as needed as long as its use did not break host nation laws or regulations.  This was also confirmed in an email from the Deputy Commander, USASATMO, dated 7 February 2008, wherein he confirmed "authorized use of vehicle includes use of a personal nature such as shopping, errands, and chauffeuring dependents."

	c.  Concerning failing to report a potentially diplomatically sensitive situation with host nation personnel in a timely manner, he states that immediately upon receiving the information late Friday afternoon, he took measures to diffuse the situation by informing and conferring with the host nation command and was informed by the command that everything was okay and there were no issues.  He did not see it necessary to bother his chain of command over the weekend and informed them first thing Monday morning.

	d.  Concerning failing to recognize personal calls, he states that upon receiving guidance to identify and pay for his personal phone calls, he prepared to do so.  However, because it was difficult to identify which calls were personal and which were official, he got further clarification.  Because it was impossible to positively identify every personal call, he paid for all calls.

	e.  Concerning being a junior foreign area officer who may work better under more direct and constant supervision, he states he had been assigned the same duty from November 2006 to June 2007 and had been rated Above Center of Mass by the outgoing USMILGP commander.

	f.  Concerning straining military-to-military relationships and choosing to compromise his integrity, he states the memoranda and email from 11 U.S. mission and senior Ecuadorian military personnel stating he generally performed his assigned job in a satisfactory to excellent manner during the period proves otherwise.  He states that no mission was left unaccomplished.  Obeying the order from the Navy section chief would have delayed his departure from country as directed by his supervisor and stated in his orders, and was contrary as to the directions given to him by his supervisor.  No personal gain resulted from disobeying the order.

	g.  Concerning inability to appropriately follow guidance on several occasions despite having been counseled both verbally and in writing several times, he states he accomplished every task at or above the standards as directed in the plan of action.

5.  The memoranda and email provided by the applicant essentially state he was found to be a mature, competent officer who represented the U.S. Army well in his many interactions with the Ecuadorian Army and the U.S. Embassy.  He had shown himself to be an individual with a high standard of professionalism in all missions delegated to him.  He was described as a loyal, honorable, and upright Soldier.

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

	a.  Paragraph 1-9 states Army evaluation reports are assessments of 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, and as explained in the governing pamphlet.  Consideration will be given to the following:

* the relative experience of the rated Soldier
* the efforts made by the rated Soldier
* the results that could reasonably be expected given the time and resources available

	b.  Paragraph 1-9 also states potential evaluations will be performance-based assessments of rated Soldiers 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 Headquarters, Department of the Army (HQDA).

	c.  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.

	d.  Paragraphs 6-3 and 6-4 state the primary purpose of a Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.  However, in these after-the-facts cases, this paragraph is not intended to be a substitute for the appeals process which is the primary means of addressing errors and injustices after they have become a matter of permanent record.

	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.

7.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the AMHRR.  It states the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board.  Table 2-1 states the DA Form 67-9 (Officer Evaluation Report) is filed in the performance section of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by moving his OER for the period 5 June 2007 to 19 March 2008 to the restricted portion of his AMHRR.  He bases his request on substantive inaccuracy in the subject OER.  He asserts that his performance of duty was satisfactory at a minimum and that he accomplished his mission as a counter-narcotics advisor to the Ecuadorian Armed Forces.

2.  The subject OER is a permanent-change-of-station report that was referred to the applicant.  The report shows the rater, intermediate rater, and senior rater each had concerns about the applicant's integrity and performance of duty.  These concerns, which were reflected throughout the report, included his willful disobedience of a lawful order, display of poor judgment, and his apparent attempt to circumvent payment for his personal telephone calls.  As a result, he was not recommended for promotion and his future assignments included positions where he could work in a controlled environment under close supervision.

3.  In his comments to the referred OER, the applicant states he did not perceive the order given to him by the Navy section chief as legal because the requested task was not within his duty description and was in conflict with other orders he had received from his supervisor.  As a field grade officer, he knew or should have known his responsibility to resolve the issue of having conflicting orders and not just disregard the latest order whether he thought it legal or not.

4.  The applicant contends, in effect, that he was authorized to use his assigned GOV for personal use because it was not under the control of the USMILGP.  However, in comparing the policy letter of the USMILGP and the email from the USASATMO, it is difficult to determine the degree of difference between the two policies and whether he had or had not abused the use of his assigned GOV.

5.  The applicant contends that he did not see it necessary to bother his chain of command during the weekend about a potentially diplomatically sensitive situation that occurred late on Friday because he believed he had diffused the situation and was informed by the host nation command that there were no issues.  Obviously, his chain of command had a differing opinion about the situation as reflected in the subject OER.

6.  The applicant contends that when he was given guidance concerning his failure to recognize personal calls, he then attempted to identify the calls and paid for them.  The applicant's actions in this matter appear to indicate a desire on his part to avoid paying for his personal phone calls.  Apparently, his raters thought so, too, and made their comments in the OER based on such beliefs.

7.  The applicant states he performed the same duty from November 2006 to June 2007 and was rated Above Center of Mass by the outgoing USMILGP commander.  He implies by this statement that he was not a junior officer who needed more direct and constant supervision.

8.  The applicant provided memoranda and email from 11 U.S. Mission and senior Ecuadorian military personnel stating he generally performed his assigned job in a satisfactory to excellent manner during the rating period.  He argues that these documents are proof that he did not strain military-to-military relationships or compromise his integrity.  While these documents generally state the applicant had been successful in his duties as a technical assistance field team member in Ecuador, the authors were not in his rating chain and were not in a position to know or understand the requirements established by the rating chain.  Therefore, their comments do not prove or disprove the entries made in the subject OER.

9.  Despite having been counseled both verbally and in writing several times about his inability to appropriately follow guidance on several occasions, he contends he accomplished every task at or above the standards as directed in the plan of action.  This admission appears to show he needed close supervision.

10.  The subject OER is 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.  The applicant has not provided clear and convincing evidence of a strong and compelling nature to overcome this presumption of regularity.

11.  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 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)                                         AR20120010906



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ABCMR Record of Proceedings (cont)                                         AR20120010906



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