IN THE CASE OF:	  

		BOARD DATE:	  6 December 2012

		DOCKET NUMBER:  AR20120014718


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 his DA Form 67-9 (Officer Evaluation Report (OER)), covering the rated period 7 June 2008 through 4 May 2009 (hereafter referred to as the contested OER), from his Army Military Human Resource Record (AMHRR).

2.  The applicant states:

* his appeal is based upon an administrative error that denied him due process
* his relief-for-cause was not properly approved by a general officer (GO); therefore, it is invalid
* Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-54c, and Army Regulation 600-20 (Army Command Policy), paragraph 2-17, both state the relief for cause of an officer from any command position requires the written approval of the first GO in the chain of command
* his appeal was not submitted previously because the first time he saw the command recommendations (contained within his relief packet) was at his board of inquiry on 21 May 2012
* because of this action, he was denied a possible Commander’s Inquiry by the GO, or at the very least, an informal Article 15-6 investigation, which could have led to a very different outcome in his evaluation
* due to the fact his relief-for-cause was never approved by a GO, it is therefore invalid and his corresponding OER is invalid as well 


3.  The applicant provides his relief-for-cause packet, consisting of:

* memorandum from the Commander, 1st Space Company, 1st Space Battalion, 1st Space Brigade, to the Commander, Space and Missile Defense Command, dated 10 April 2009, subject: Relief for Cause
* memorandum from the Commander, 1st Space Battalion, 1st Space Brigade, to the Commander, Space and Missile Defense Command, dated 20 April 2009, subject: Request for Approval of Relief for Cause of Captain (CPT) [Applicant] as Commander, D Detachment, 1st Space Company…
* memorandum from the Commander, 1st Space Brigade, to the Commander, Space and Missile Defense Command, dated 27 April 2009, subject: Request for Approval of Relief for Cause of CPT [Applicant] as Commander, D Detachment, 1st Space Company, 1st Space Battalion…
* blank memorandum from Commander, Space and Missile Defense Command
* the contested OER

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.  On 24 May 2003, the applicant was appointed as a Reserve commissioned officer of the Army, in the rank/grade of second lieutenant/O-1, in the Air Defense Artillery branch.  He entered active duty, completed the Air Defense Artillery Officer Basic Course, and was awarded area of concentration 14B (Short Range Air Defense (SHORAD) Artillery Officer).

3.  On 30 November 2004, he was promoted to first lieutenant, and on 1 July 2006 he was promoted to CPT.

4.  On 10 June 2009, he received a relief-for-cause OER for his duty performance as a detachment commander.  This report covered 11 months of rated time between 7 June 2008 and 4 May 2009.

	a.  In Part IV (Performance Evaluation – Professionalism), Part A (Army Values), the rater placed a checkmark in the “No” block of number 5 (Respect), indicating a deficiency in that rated area on the part of the rated officer.

	b.  In Part IV (Performance Evaluation – Professionalism), Part B (Leader Attributes/Skills/Actions), the rater placed checkmarks in the “No” blocks of item b.1. (Attributes) numbers 2 (Physical) and 3 (Emotional); item b.2. (Skills) number 1 (Conceptual); and item b.3. (Actions) number 7 (Developing).  These checkmarks indicate a deficiency in those particular rated areas on the part of the rated officer.

	c.  In Part V (Performance and Potential Evaluation (Rater)), Part A (Evaluate the Rated Officer’s Performance During the Rating Period and His/Her Potential for Promotion), the rater placed a checkmark in the “Unsatisfactory Performance, Do Not Promote” block.

	d.  In Part V (Performance and Potential Evaluation (Rater)), Part B (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 (OER Support Form)), the rater stated:

Unsatisfactory performance as detachment commander.  CPT [Applicant] was suspended and subsequently relieved from command due to poor judgment, misconduct toward his chain of command and his repeated failure to follow guidance and direction.  This relief was directed by myself.  During a recent command off-site attended by Company, Battalion and Brigade leadership, CPT [Applicant] outwardly showed disrespect towards a superior commissioned officer.  He demonstrated a poor attitude that was observed by subordinates, peers, and senior ranking officers.  Although CPT [Applicant’s] current record Army Physical Fitness Test (APFT) is passing, he failed a record APFT and a diagnostic APFT within the last seven months of this rating period.  CPT [Applicant] did make improvements to the detachment and accomplished several tasks during this rating period.  Specifically, he was directly responsible for the acquisition of temporary administrative space for the detachment as well as coordination for a paving project directed by the Commanding General.  The eventual accomplishment of these tasks was achieved with a significant amount of guidance and direction from his higher command and staff.  Although CPT [Applicant] did make positive contributions toward the unit, they were overshadowed by his poor attitude, bad decision-making, and repeated failure to follow direction.

	a.  In Part VII (Senior Rater), Part A (Evaluate the Rated Officer’s Promotion Potential to the Next Higher Grade), the senior rater placed a checkmark in the “Do Not Promote” block.

	b.  In Part VII (Senior Rater), Part C (Comment on Performance/Potential), the senior rater stated:

Fully concur with rater comments and the decision for relief of CPT [Applicant] from his Joint Tactical Air-to-Ground Station (JTAGS) detachment position.  However, CPT [Applicant] is a competent and capable officer with many redeeming qualities.  Under CPT [Applicant’s] leadership, the detachment functioned well and many important and significant tasks were accomplished, moving the command in a positive direction.  CPT [Applicant] is a young officer who did not always demonstrate sound judgment or fully adhere to all Army values.  For this reason, allowing him to return to a position of influence and leadership is not in the best interest of the good order and discipline of the command.  CPT [Applicant] does have potential for successful service in the U.S. Army if he improves himself and corrects the leadership deficiencies that led to the decision for relief.

5.  The contested OER was referred to the applicant for acknowledgement.  The OER indicates the applicant declined to comment.

6.  He provides a copy of the relief packet, which includes unfavorable relief recommendations from his former Company, Battalion, and Brigade commanders.  The packet is void of a GO letter of concurrence to his relief action; however, this by itself does not mean a GO did not direct his relief in writing.  He did not submit any documentation that shows a GO disapproved of his relief recommendation or directed he not be relieved.  

7.  Army Regulation 600-20 prescribes the policies and responsibilities of command, which include the well-being of the force, military discipline, and conduct.  Paragraph 2-17 states that when a senior commander loses confidence in a subordinate commander's ability to command due to misconduct, poor judgment, the subordinate's inability to complete assigned duties, or for other similar reasons, the senior commander has the authority to relieve the subordinate commander.  Relief is preceded with formal counseling by the commander or supervisor unless such action is not deemed appropriate or practical under the circumstances.  Although any commander may temporarily suspend a subordinate from command, final action to relieve an officer from any command position will not be taken until after written approval by the first GO (to include one frocked to the grade of brigadier general) in the chain of command of the officer being relieved is obtained.  Any action purporting to finally relieve an officer from any command position prior to the required written approval will be considered for all purposes as a temporary suspension from assigned duties rather than a final relief from command for cause.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his relief-for-cause OER is invalid, since a GO did not provide written approval for his relief-for-cause.  

2.  The evidence shows the applicant’s Company, Battalion, and Brigade commanders all recommended his relief.  

3.  His AMHRR lacks any allied documents associated with the contested OER that shows a GO approved his relief-for-cause; however, the absence of a signed GO memorandum approving his relief does not mean one does not exist.  Similarly, the blank memorandum submitted by the applicant does not mean a signed document doesn't exist, and it does not constitute evidence to the contrary.  In the absence of documentation that shows a GO specifically disapproved his relief action, the Board must presume regularity on the part of the Army.  

4.  Accordingly, barring documentation, such as an affidavit from the GO in question, that shows the GO specifically disapproved his relief action, there is insufficient evidence to support his contention of error or injustice.  In view of the foregoing, it would not be appropriate to remove the contested OER from the applicant’s AMHRR.

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)                                         AR20090007349



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ABCMR Record of Proceedings (cont)                                         AR20120014718



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