IN THE CASE OF:	  

		BOARD DATE:	    29 January 2013

		DOCKET NUMBER:  AR20120017230 


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 the removal of his officer evaluation report (OER) ending on 12 December 2006 (hereafter referred to as the contested report) from his official records.  

2.  The applicant states, in effect, that the Relief for Cause OER ending on        12 December 2006 should be removed from his official records based on substantive and administrative errors.  He goes on to state that the rating officials’ repeated deviations from established evaluation timelines and administrative requirements substantiate his assertions of bias, prejudice, and inaccuracies.  

3.  He also states that previous attempts were made to correct these cited administrative and substantive errors initially upon receiving the evaluation for signature and again during re-signing in May 2007.  He continues by stating that the severity/gravity of this matter professionally, and the life-altering effects for his family and himself, demand recourse; and if not corrected immediately, will have adverse impacts relating to show-cause/elimination boards.  

4.  He further states that he has honorably and faithfully served in the Army since he was 17 years of age, has conducted two combat deployments, been wounded in combat, and he still desires to serve to his country.  He also states that his records demonstrate that the relief for cause evaluation is not an accurate portrayal of him personally or professionally and was based on the biases of his rating officials.
 
5.  The applicant provides a Table of Contents consisting of 11 Tabs.
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) in Wisconsin on      13 May 1987.  He completed his training and continued to serve as a motor transport operator.

2.  On 19 December 1993, he was commissioned as a USAR second lieutenant upon graduation from the Reserve Officers” Training Corps (ROTC) Program in Milwaukee, Wisconsin.  He was ordered to active duty as an Engineer Corps officer and has served in a variety of assignments.  He was promoted to the rank of major on 1 October 2004.

3.  On 6 November 2006, while serving as the executive officer of a combat engineer battalion at Fort Riley, Kansas, the applicant was suspended from his duties and was given a no-contact order by his brigade commander not to have contact with a female chief warrant officer.

4.  On 7 November 2006, the brigade commander issued a "Restriction Order" restricting the applicant from the battalion’s work space.

5.  On 18 December 2006, the Commanding General (CG) of the 1st Infantry Division imposed nonjudicial punishment (NJP) against the applicant for wrongfully engaging in a relationship with a female subordinate officer.  His punishment consisted of a forfeiture of pay and a written reprimand.  The applicant did not appeal the punishment and the CG directed that the DA Form 2627 (Record of NJP) be filed in the restricted section of his official records. 

6.  On 20 December 2006, the brigade commander relieved him for cause and permanently removed him from his duties as executive officer.  He cited as the basis for the relief action that an investigation revealed misconduct on the applicant’s part by engaging in a prohibited relationship with a female subordinate officer.

7.  While it cannot be determined from the available evidence when the original relief for cause OER was prepared, the final report was completed on 24 May 2007.

8.  In Part IVa, under Army Values, the rater gave the applicant “NO” ratings under Honor, Integrity, Courage and Loyalty.

9.  In Part IVb, under Leader Attributes/Skills/Actions, the rater gave him “NO” ratings under Mental Attributes and Conceptual Skills.

10.  In Part V, under Performance and Potential Evaluation, his rater gave him a rating of “Unsatisfactory Performance – Do Not Promote.”  His rater, the battalion commander, commented that the applicant wrongfully engaged in an inappropriate relationship with a female subordinate in her apartment and when discovered at her apartment, he attempted to run from him, his battalion commander.  He also stated that the applicant’s actions reflected extremely poor judgment and a profound lack of personal and professional integrity and the moral courage to do what was right.  Due to his misconduct, he had lost total trust, faith, and confidence in his abilities as an officer in the battalion and the Army.  He also indicated some of the applicant’s accomplishments.  He  recommended that the applicant not be promoted or retained in the Army. 

11.  In Part VII, the senior rater and brigade commander, gave the applicant a “Do Not Promote” rating and placed him “Below Center of Mass – Retain” in his senior rater profile.  He indicated in his comments that the applicant failed to maintain the Army values and professional standards expected of a commissioned officer by engaging in an inappropriate relationship with a female subordinate who was not his wife.  He also indicated that he directed the relief for cause and that the applicant still has the capability to serve the Army and that he had not used a DA Form 67-9-1. 

12.   The report was referred to the applicant and it appears that the applicant responded to the referred OER on at least two occasions.  The second memorandum he submitted was dated 15 May 2007 and he contended that the rater’s comments of “Do not retain in the United States Army” was not authorized in accordance with Department of the Army Pamphlet 623-3, paragraph 3-34.  He also contended that the rating officials had not mentioned any accomplishments, that the rater incorrectly gave him a “NO” rating under integrity, that the use of the term “female subordinate” is a derogatory remark and used without substantiation.  He also stated that the comments regarding his attempt to flee from the rater is not substantiated as underlying misconduct.

13.  On 24 May 2007, the Assistant Division Commander (a brigadier general) reviewed the contested OER and found that the report was clear, accurate, complete, and in full compliance with the provisions of Army Regulation 623-3 and directed that processing of the report be continued.  Additionally, he addressed the applicant’s issues and found no merit in them.

14.  The applicant did not appeal the contested report to the Officer Special Review Board within that board’s 3-year regulatory time-frame.

15.  The applicant was promoted to the rank of lieutenant colonel on                    1 September 2011.  On 9 May 2012, the CG of the U.S. Army Human Resources Command (HRC) notified the applicant that he had been identified to “SHOW CAUSE” for retention on active duty because of misconduct, moral or professional dereliction as indicated in the relief for cause OER.

16.  At the time he applied to the Board on 12 August 2012, the applicant was serving in Afghanistan.

17.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures and serves as the authority for the preparation of the OER.  It provides that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer is presumed to be administratively correct and to have been prepared by the properly designated rating officials at the time of preparation.  Each report must stand alone.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

18.  Army Regulation 623-3 also provides that the burden of proof in an appeal of an OER rests with the applicant.  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.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

19.  Paragraph 3-20 of that regulation provides, in part, that the use of inappropriate or arbitrary remarks or comments that draw attention to differences relating to race, color, religion, gender, age, or national origin is prohibited.  It also provides that when NJP is imposed and filed in the restricted section of an individual’s official records, it does not preclude mentioning the rated Soldier’s underlying misconduct. 

20.  Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides in paragraph 2-13 that if an officer or warrant officer is officially relieved, specific instructions will be apply to completing the relief for cause OER which includes the requirement to reflect a “DO NOT PROMOTE” or “OTHER” recommendation by the rater, that the report identify the official directing the relief, that the report be referred to the rated officer and that an additional review of the report be conducted after the report is referred by the next officer in the rating chain.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and supporting documents have been noted; however, they appear to lack merit.

2.  Although acceptance of NJP is not an admission of guilt, there is no evidence to show that the applicant disputed the misconduct for which he was accused and which is properly reflected on the contested OER.

3.  It is also noted that while the OER was not processed in a timely manner, it appears that the delays were also a result of the applicant submitting two responses/rebuttals disagreeing with the contents of the report and the chain of command’s efforts to ensure that the applicant’s rights were not violated.  However, the delays in processing the report do not negate the validity of the report.  Accordingly, the contested report appears to represent a fair, objective, and valid appraisal of his performance and potential during the period in question.  

4.  In view of the foregoing, there is no basis for granting the applicant's request to remove the contested report from his official records.
 
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)                                         AR20120017230





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ABCMR Record of Proceedings (cont)                                         AR20120017230



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