IN THE CASE OF:	  

		BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120016428 


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 16 June 2009 through 8 September 2009 from his permanent file.

2.  The applicant states:

	a.  The record and adverse OER are erroneous due to substantive inaccuracy and procedural errors.  This request is supported by the enclosed reports of military performance and chain of command recommendations.

	b.  He was commissioned on 13 May 2006 and initially assigned to Fort Campbell, KY, from March 2007 to April 2009.  He has completed two combat deployments, in support of Operation Iraq Freedom (2007-2008) and Operation Enduring Freedom (OEF) (2010-2011).  He is currently commanding Company A, 1st Battalion, 5th Infantry, at Fort Wainwright, AK.

	c.  During the period of the subject OER, he served as the commander of the Forward Support Company, 3rd Battalion, 187th Infantry.  The derogatory language at issue related to the allegation that he drove under the influence (DUI) of alcohol in September 2009.  This charge was dismissed, but not before negative language was prematurely placed in this OER and he was removed from command.  The OER comments are:

		(1)  Part V (Performance and Potential Evaluation), section b, stated:  "…on 5 September 2009 Captain (CPT) [Applicant] had a serious lapse in judgment when he made the decision to drink and drive.  That night he was pulled over by the police and blew a .013 on the breathalyzer.

		(2)  Part VII (Senior Rater (SR)), section c, stated: "Unacceptable behavior and arrogance.  CPT [Applicant] exhibited poor judgment by driving a vehicle under the influence of alcohol.  As a company commander, it was not only his job to comply by, but more importantly, to enforce the Brigade Combat Team (BCT) DUI Prevention Program.  His actions are a disgrace to this BCT and a betrayal to the Soldiers under his command.  As such, I have removed him from command.  He has little potential for promotion or future service."

	d.  This derogatory language was at the time of the report unverified and made prematurely before the investigation and allegations were resolved in court and ultimately dropped.  Nonetheless, the SR referred to the incident and used it as the reason for his removal from command and the recommendation for elimination.  

   e.  With regard to the recommendation regarding performance and potential for promotion, the rater's comments were inconsistent with his selection in Part V, section a, which noted "Satisfactory Performance, Promote."  Department of the Army (DA) Pamphlet "623-2" [should be 623-3] (Personnel Evaluation - Evaluation Reporting System), paragraph 2-13a requires that if a rated officer is relieved, that section of the evaluation must reflect "Do not promote" or "Other."  In this case, the potential evaluation section reflected "Satisfactory Performance, Promote" and in Part VII of the report by the SR he was recommended as "Fully Qualified" for promotion to the next grade.  The inconsistent comments related to his performance were not oversights or administrative errors, but rather, they reflected the recommendation from his superiors and their observation of his performance.

	f.  The negative remarks will have a negative effect on his career and promotion, and were premature in a situation where the allegations against him were yet to be heard in court and the case was still pending at the time of the report.  His case was not concluded until 15 April 2010 and it was then resolved with only a $100.00 fine and no DUI charge.  The DUI charge was dropped and amended at the discretion of the county attorney to only a misdemeanor reckless driving violation after reviewing the evidence and considering the circumstances of the case.

	g.  DA Pamphlet 623-3, paragraph 3-23, provides guidance governing references to pending investigations.  Paragraph 3-23(b) states "references will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to Headquarters, Department of the Army (HQDA).  If the rated individual is absolved, comments about the incident will not be included in the evaluation."  This restriction is intended to prevent unverified derogatory information from being included in evaluation reports, pending resolution.  It should also prevent unjustly prejudicial information from being permanently included in a Soldier's official military personnel file (OMPF) (now known as the Army Military Human Resources Record (AMHRR)).

	h.  In his case, although the SR may have relied on the first reports and investigation as verification, even before the charges were brought to court for resolution, the fact that the government attorney reviewed the evidence related to the allegations and amended the DUI charge, without going forward with the prosecution for that allegation, should weigh in favor of correcting the derogatory language that is in the evaluation and thus in his permanent AMHRR. 

   i.  The enclosed letter from the Attorney Pxxxxx T. Mxxxxxx provides additional details regarding the reduced charge and the final disposition of this case.  Based on the circumstances of his case, including the lack of proof that he was DUI, the county attorney concluded that there was a reasonable doubt in the evidence and chose to resolve the case with a simple reckless driving misdemeanor and a $100.00 fine.  His license was never suspended and no additional drivers training was recommended.  His counsel recommended that he accept the resolution in order to resolve the case instead of pursuing it further, so that he could put the matter behind him and focus on his career.  
   
   j.  The enclosed records and recommendations will show that the applicant's  career and performance of duty have been honorable and specifically commanded by his supervisors and officers who have submitted letters of support on his behalf.  This review will show he had a strong career and has been commended for dedicated performance.  Since the period of the contested OER, he has deployed to Afghanistan and commended on his performance during the deployment.  He received the Army Commendation Medal (ARCOM) for valor during that service and a Bronze Star Medal (BSM) for his service in support of OEF.

	k.  As a result of this negative report he was directed by the U.S. Army Human Resources Command (HRC) to show cause for retention on active duty.  A field board of inquiry (FBOI) was conducted on 22 November 2012, approved on 26 November 2012, and determined that he should be retained on active duty with reassignment.  It was the stated opinion of the board that his performance before, during, and after has been nothing short of exemplary as indicated by his recent assignment as a company commander of an infantry company in combat.  
	l.  He was notified that the Army Special Review Board (ASRB) denied his initial appeal of the adverse OER.  The single derogatory OER threatens to significantly impact his career and service in the Army.  Based on the procedural errors in this report and the fact that these derogatory comments were made prior to a court resolution by the county attorney, who ultimately dropped the DUI charge, he respectfully urges the Board to correct his record by removing this OER from his record.

3.  The applicant provides:

* two DA Forms 1059 (Service School Academic Evaluation Report)
* eight OERs, to include the contested OER, for the periods from 2006 to 2012
* five letters in support of his retention on active duty
* Elimination Action memorandum
* BSM certificate
* Narrative Recommendation for the ARCOM and ARCOM certificate
* ASRB memorandum
* letter from Attorney Pxxxxxx T. Mxxxxxx
* DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)
* 2011 Chain of Command Recommendations
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)
* Elimination action
* Findings and Recommendations Worksheet - Board of Inquiry
* Termination of Elimination Processing memorandum
* General Officer Memorandum of Reprimand (GOMOR) Removal Recommendation memorandum

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

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

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service, the applicant was appointed in the U.S. Reserve as a second lieutenant on 13 May 2006.  He was ordered to active duty and entered active duty on 4 June 2006.  He was promoted to captain on 1 June 2009.

2.  A Commonwealth of Kentucky (KY) Uniform Citation shows he was arrested on 5 September 2009 after being observed jerking his vehicle to the right and then back to the left.

3.  On 1 October 2009, he was issued a GOMOR for driving a motor vehicle on 5 September 2009 with a blood alcohol content of .133 percent or higher in violation of KY law.  

4.  On 13 November 2009, he acknowledged receipt of the GOMOR and elected to submit a statement in his own behalf.

5.  In letters dated between 17 and 19 November 2009, four senior members of his command recommended his retention and attested to his unlimited potential and exceptionally well overall performance.

6.  On 2 December 2009, the Commanding General, 101st Airborne Division (Air Assault) and Fort Campbell, directed the GOMOR be filed in the applicant's AMHRR.

7.  On 14 January 2010, he was relieved for cause due to his misconduct and received a relief-for-cause OER for the period 6 June 2009 through 8 September 2009 for his duties as a Company Commander.  His rater was a lieutenant colonel, battalion commander, and his SR was a colonel, BCT commander, for the 101st Airborne Division (Air Assault).  In Part Vb, the rater entered the following comments:

[Applicant] served as the Commander of the Forward Support Company, 3rd Battalion, 187th Infantry, for two months during an extremely challenging and intensive cycle in preparations for counterinsurgency operations in Afghanistan.  However, on 5 September 2009 [applicant] had a serious lapse in judgment when he made the decision to drink and drive.  That night he was pulled over by the police and blew a 0.13 on the breathalyzer.  This poor decision tarnished his performance in leading the company as it supported the battalion during a two-week Field Training Exercise, maintaining the battalion's vehicles and equipment, and preparing the company and the battalion for a deployment to the Joint Readiness Training Center for a Mission Rehearsal Exercise.  His efforts made a significant contribution in preparing the company for the rigors of combat.  Already selected to attend the Maneuver CPT's Career Course, [Applicant's] performance needs to be carefully evaluated prior to him being considered for another opportunity to command a company.

	a.  In Part Vc, the rater entered the following comment, "Due to his lapse in judgment, his promotion to major should be carefully considered."

	b.  In Part VII(a) (SR), the SR placed an "X" in the "Fully Qualified" block.  In Part VIIb, the applicant was not assessed.  In Part VIIc, the SR entered the following comments:

Unacceptable behavior and arrogance.  [Applicant] exhibited poor judgment by driving a vehicle while under the influence of alcohol.  As a company commander, it was not only his job to comply by[sic], but more importantly, to enforce the BCT's DUI Prevention Program.  His actions are a disgrace to this BCT and a betrayal to the Soldiers under his command.  As such, I have removed him from command.  He has little potential for promotion or future service.

8.  The OER was digitally signed by his rater and SR on 14 January 2010 and by the applicant on 19 January 2010.

9.  On 6 July 2010, after considering the recommendations of the chain of command and the rebuttal matter submitted by the applicant, the Commanding General recommended closing the elimination pertaining to the applicant and that he be retained in the Army.

10.  On 30 July 2010, he completed the Maneuver Captain's Career Course.

11.  On 29 April 2011, the ASRB denied his request for altering or withdrawing his contested OER.

12.  On 26 October 2011, the applicant's chain of command recommended his retention on active duty.

13.  In a letter to the BOI, dated 15 November 2011, the applicant's brigade commander recommended the applicant's retention on active duty.  The brigade commander stated:

	a.  The applicant had served in his brigade since 7 September 2010 under his command in Alaska (AK) as well as forward deployed to Afghanistan in support of OEF.  The applicant was a proven combat commander who understood Counterinsurgency Operations and applied that knowledge every day to operations in South Kandahar Province.  As a battalion staff officer and as a rifle company commander he had hit the ground running, as he had executed comprehensive COIN (counterinsurgency) that allowed instant success and security for the people of Panjwai.  
	b.  He strongly supported the recommendation of the applicant's battalion commander and the findings of the major general in the initial show cause notification in which he recommended retention.  The applicant was a great officer who had unlimited potential and he would be an asset to the Army in the years ahead.  

14.  In a letter, dated 18 November 2011, the applicant's attorney, in response to a request to elaborate on the arrest and the arresting officer involved in the charge against the applicant of DUI, stated:

   a.  He wanted to emphasize that the charge of DUI against the applicant was dropped.  The applicant entered a guilty plea to the substitute charge of reckless driving.  His only consequence was to pay a $100.00 fine with no other conditions or any probation.  That disposition concluded the matter in the District Court of Christian County, KY. 
   
   b.  He learned that the officer was not certified to perform the Standard Field Sobriety Test approved by the Institute of Traffic Safety.  Further investigation revealed that the officer had not been certified as a Breath Alcohol Officer.  He concluded that the officer did not have probable cause to make a stop of the applicant's vehicle.  The vehicle did not violate any traffic laws to justify making the stop.  The applicant did not exercise any erratic behavior while operating his vehicle.  Accordingly, a motion to challenge the stop and suppress evidence obtained after the stop was available and strong.
   
   c.  Based upon the good suppression issue, the applicant's excellent performance during the Field Sobriety Test and the dismissal of one of the police officer's, the county attorney observed that he did not have adequate proof the applicant was operating his vehicle under the influence when he was stopped.  For those reasons, the county attorney concluded that a reasonable doubt existed on the case of DUI and offered to settle the case to the substitute charge of reckless driving.  The only punishment was a $100.00 fine.
   
   d.  From his experiences, that was an extraordinary minimal sentence associated with a reckless driving plea.  There was no jail time ordered, no alcohol safety school ordered, no loss of driving privileges, or any other kind of conditions to the settlement that would normally be seen in a case that involved any indication of an impaired driver.  

15.  On 22 November 2011, a board of officers found the applicant did not demonstrate conduct unbecoming of an officer.  The charge of driving a motor 
vehicle while under the influence for which the applicant received a GOMOR was not substantiated in court.  The board recommended the applicant be retained in the military service and he not receive a new duty assignment.

16.  On 26 November 2011, after considering the recommendations of the chain of command and the rebuttal matter submitted by the applicant, the Commanding General closed the elimination pertaining to the applicant and approved his retention in the Army.

17.  He was awarded the BSM on 21 February 2012 and the ARCOM with "V" Device on 29 February 2012.

18.  On 24 February 2012, a Report to Suspend Favorable Personnel Actions against the applicant was favorable closed.  The applicant was advised to apply to the Department of the Army Suitability Evaluation Board for removal of the documents which were the basis for directing him to show cause for retention.

19.  On 15 May 2011, the applicant's brigade commander recommended removal of the GOMOR.  The brigade commander stated:

	a.  The applicant was issued a GOMOR in October 2009 for DUI.  In April 2010, the court reduced the initial charge of DUI to reckless driving.  The applicant then PCS'd (permanent change of station) to Fort Wainwright, AK.  The applicant deployed, under his command in AK as well as forward deployed to Afghanistan, in support of OEF.  

	b.  He had never written a recommendation for any noncommissioned officer or officer to have a GOMOR removed, and recognized the seriousness of any leader involvement in an alcohol-related event, but he felt very strongly about the applicant's ability to continue to serve in their Army.  He strongly recommended removal of the applicant's GOMOR so that the applicant could continue to serve and progress in rank and responsibility.  The applicant had unlimited potential and would be an asset to the Army in the years ahead.

20.  Army Regulation 623-3, in effect at the time, established the policies and procedures for the Army's Evaluation Reporting System.  The regulation stated:

	a.  An OER accepted by Headquarters, Department of the Army (HQDA), and included in the official record of an officer, was presumed to had 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 rest 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 specified except to comply with the regulation, no person could require changes be made to an individual's OER.  Members of the rating chain, appropriate administrative personnel office, or HQDA would  point out obvious inconsistencies or administrative errors to the appropriate rating officials.  The regulation also provided the opportunity to request a Commander's Inquiry or to appeal referred/disputed reports.

	c.  Paragraph 2-19 stated that when an officer was officially relieved of duties and a relief-for-cause report was subsequently prepared (paragraph 3-58), relief-for-cause reports required referral to the rated officer.  That referral would be completed before taking any of the action in the following subparagraphs.

	d.  If the relief was directed by the rater or intermediate rater, the SR would  do the review provided he or she was 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 would review the reports.

	e.  Paragraph 3-20 stated the following comments are prohibited and would  not be included in evaluation report: (1) the use of inappropriate or arbitrary remarks or comments that attention to differences relating to race, color, religion, gender, age, or national origin, (2) reference to a nonjudicial punishment that has been filed in the restricted portion of the AMHRR, (3) negative comments about a Soldier making protected communications (to Inspector General, member of congress), (4) remarks about nonrated periods; performance; or incidents that occurred before or after the rating period, (5) "Relief for Cause: report based on information pertaining to a previous reporting period.gin

	f.  Paragraph 3-58 stated a relief-for-cause OER report was required when an officer was relieved for cause regardless of the rating period involved.  Relief for cause was 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 or her performance of duty.  In that regard, duty performance would 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.  Those standards would apply to conduct both on and off duty.


21.  DA Pamphlet 623-3 prescribes the policy and tasks for the Army's Evaluation Reporting System.  The pamphlet states the following:

	a.  Paragraph 2-13 states the instructions that apply to completing a "Relief for Cause: OER.  The potential evaluation in Part V, block a, must reflect "Do Not Promote" or "Other."  The "Do Not Promote" recommendation is consistent with relief action and does not need further explanation.  However, raters who want to make some other recommendation must check "Other: and explain their recommendation and reasons in view of the action to relieve.  The report will identify the rating official who directed the relief.  This official will clearly explain the reason for relief in his/her narrative portion of the DA 
Form 67-9.

	b.  Paragraph 2-14 states reviewers of the "Relief for Cause" OERs will ensure that the narrative portions of the OER contain factual information that fully explains and justify the reason for the relief.  Reviewers will verify that any derogatory information has been accurately reflects.

	c.  Paragraph 2-14d(1) states if the SR finds that the report is unclear, contains errors of fact, or is otherwise in violation of Army Regulation 623-3, he/she will return the report to the rater or intermediate rater, indicating what is wrong.  The SR will avoid all statements and action that may influence or alter an honest evaluation by the rater or intermediate rater.  The corrected report will be returned to the SR.

22.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the AMHRR, Military Personnel Records Jacket, Career Management Individual File, and Army Personnel Qualification Record.  It also prescribes the composition of the AMHRR.  Paragraph 2-4 states that once a document is placed in the AMHRR 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 driving a motor vehicle in the State of KY with a blood alcohol content of .133 percent or higher, in violation of state law.  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 "Satisfactory Performance, Promote" and "Fully Qualified" by his rating officials.

2.  The applicant's counsel was successful in getting the DUI charge dropped and amended to a misdemeanor violation without any conviction for DUI after learning the officer involved was not certified to perform the Standard Field Sobriety Test approved by the Institute of Traffic Safety and the officer had not been certified as a Breath Alcohol Officer.  Counsel concluded that the officer did not have probable cause to make a stop of the applicant's vehicle.  For those reasons, the county attorney concluded that a reasonable doubt existed on the case of DUI and offered to settle the case to the substitute charge of reckless driving with a $100.00 fine.

3.  The applicant contends that negative comments contained his OER were made on his OER prior to the charges being reduced.  However, the evidence shows the comments appear to be based upon his arrest and breathalyzer test.  In accordance with regulatory guidance, any verified derogatory information may be entered on an evaluation.  The evidence shows the applicant was arrested and underwent a breathalyzer test at the time and his rating chain was not precluded the use of this verified derogatory information.

4.  The applicant also argues the incident report was incorrect and the SR used it as the reason for his removal from command.  However, the subsequent judgment by the county attorney and settlement of the case does not make the information incorrect and a basis for removal of the OER from his AMHRR.

5.  The applicant and counsel's contention have been noted and found not to have sufficient merit.  The fact of the applicant's initial charge of DUI being reduced to reckless driving does not negate that the applicant's conduct led to his arrest and the initial charge of DUI.  The rating officials were aware of his initial charge and the supporting evidence which resulted in the applicant receiving the GOMOR.  

6.  The applicant's contentions and reference to language in DA Pam 623-3 have also been noted.  He quoted the regulatory provisions without indicating the date of the publication referred to.  The version in effect at the time (August 2007) provided for review of a directed relief for cause by the SR provided he/she is a U.S. Army officer.  There is no evidence of a mandatory review and the applicant did not provide comments to the OER at the time.  The evidence is not clear that the mandatory review was not completed or that it would have provided the applicant with relief.  

7.  In view of the reason for submission of the OER and in accordance with regulatory guidance the rater should have rated the applicant's performance and his potential for promotion as "Unsatisfactory Performance, Do Not Promote" or "Other" and the SR should have rated the applicant's promotion potential to the next higher grade as "Do Not Promote" or "Other  In this case the potential evaluation section reflected "Satisfactory Performance, Promote" and the applicant was recommended "Fully Qualified" by the SR.  

8.  The foregoing actions appear to be administrative oversights that do not present a fatal flaw in the report.  It is the policy of this Board to not disadvantage an applicant by making the situation any worse for having applied for a correction to their record.  As such, any correction in these portions of the report would further disadvantage the applicant.  

9.  The applicant's contentions that the entire OER should be removed from his AMHRR have 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.

10.  The statements and the support his command submitted in support of his retention on active duty were also considered.  However, none of the statements addressed the applicant's conduct which was the basis for the GOMOR and contested OER.  His elimination action was favorably closed and he was retained on active duty.  The statements do not substantiate any evidence sufficiently compelling to overcome the presumption of regularity in regard to the OER.  

11.  There is insufficient evidence of record and 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 insufficient justifications to remove an OER after it has been accepted for filing in the AMHRR.

12.  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 AMHRR and there is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity and/or to remove the contested report.

13.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Army Regulation states that evaluation reports accepted for inclusion in the official record of the rated Soldier's AHMRR is presumed to be administratively correct.



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)                                         AR20120016428





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ABCMR Record of Proceedings (cont)                                         AR20120016428



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