BOARD DATE:	  9 May 2013

		DOCKET NUMBER:  AR20120020572 


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 reconsideration of his previous request for removal of the DA Form 67-9 (Officer Evaluation Report) for the period 5 June 2005 – 
23 May 2006 (hereafter referred to as the contested OER) from his military record and promotion to the rank of major (MAJ/O-4).

2.  The applicant restates his original contentions that the above OER contains substantive and administrative errors, it was not a referred report, he was not given a chance to respond to the negative comments contained therein, and as a result, it should be removed from his record or at a minimum, the following comments should be stricken from the report in:

   a.  Part Vb "Unfortunately this talented officer used poor judgment upon redeployment and was arrested for drinking and driving.  I am confident that he has the determination to overcome this and believe that he has great potential to continue to serve our Army."

	b.  Part VIIc "Prior to his decision to drink and drive upon our redeployment from Afghanistan" and "I am confident he has the talent, discipline, and desire to overcome his mistake."

3.  The applicant states his appeal of the OER is based on both administrative and substantive errors.  In addition to the report not being referred to him, he was never convicted of the crime of drinking and driving.  He was not arrested by the Italian police or charged with any crime.  He did not pay any fines nor did he lose any pay.  He further argues that he did not receive a General Officer Memorandum of Reprimand (GOMOR) because the commanding general believed that his career was worth saving and he would be a valuable addition to the U.S. Army.

4.  Finally, he summarizes his many accomplishments, worthy contributions made to the Army and Soldiers alike, and he concludes that the contested OER should be removed from his record or modified.  He also states that he should be promoted to the rank MAJ and allowed continuance on active duty.

5.  The applicant provides:

* a self-authored memorandum
* contested OER
* two letters of support

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120008647, on 24 July 2012.

2.  During the original review of the case, the Board found:

   a.  The negative comments in the contested OER referred to the applicant having been arrested for drinking and driving.  The applicant does not deny that he drank and drove a vehicle.  He only argues that he was never convicted of the crime of drinking and driving.  He did not pay any fines, lose any pay, or receive a GOMOR, because the commanding general believed his career was worth saving, and that he would be a valuable addition to the U.S. Army.  However, he has offered no substantive documentary evidence in support of his rebuttal argument.

   b.  An OER accepted for inclusion in the official record of the Soldier is presumed to be administratively correct.  To justify deletion or amendment of such an OER the applicant must produce clear and convincing evidence showing that the presumption of regularity should not be applied to the report.  In this case, the applicant has failed to provide any such evidence.

   c.  The applicant's argument that the OER should have been referred to him has merit.  Such an error is considered to be administrative in nature and normally does not rise to a level supporting an amendment to the contents of the OER or to requiring its removal from the record.  It is also a harmless error, as the applicant could have appealed the OER through normal appeal channels at any time, within the 3 years of the through date of the report.  In this case, even though the rater and senior rater gave the applicant very high marks throughout his evaluation, they both felt it necessary to point out his mistake of using very poor judgment in deciding to drink and drive.  Based on the foregoing the Board determined the overall merits of the applicant's case were insufficient to grant the requested relief and denied his request.
   
3.  The applicant provides a self-authored memorandum, addressed to the President (Appropriate) Selection Board, U.S. Army Human Resources Command (AHRC), restating the same argument outlined in his original and current application to this Board.  This memorandum is considered as new evidence.  He did not provide any evidence and his military record does not contain any evidence to show this request was ever received or acted upon.

4.  On 12 April 2002, the applicant was appointed a second lieutenant and entered active duty in the Regular Army.  He was subsequently promoted to first lieutenant (1LT)/O-2 on 12 October 2003 and to captain (CPT)/O-3 on 1 August 2005.

5.  The applicant received a change of rater OER covering the period 15 June 2005 through 23 May 2006 for his duties as an Airborne Communications and Electronics Officer with the 1st Battalion, 508th Infantry Regiment in Vicenza, Italy.  His rater was the battalion executive officer, a MAJ.  His senior rater was the battalion commander, a lieutenant colonel, pay grade O-5.  

6.  The OER shows in Part II (Authentication):

	a.  Part IId (This is a referred report, do you wish to make comments?) contains no entry.

	b.  Part IIe (Signature of Rated Officer) the applicant signed this report and it is dated 7 August 2006.

7.  The OER shows in Part IV Performance Evaluation – Professionalism-Character:

	a.  In Part IVa (Army Values) the rater placed an "X" in all "Yes" blocks.

	b.  In Part IVb (Leader Attributes/Skills/Actions) the rater placed an "X" in all "Yes" blocks.
	c.  In Part IVd (Officer Development) the rater placed an "X" in the "NA" block to indicate developmental tasks were not appropriate for recording on a DA Form 67-9-1 or for conducting a quarterly follow-up counseling.

	d.  In Part V (Performance and Potential Evaluation (Rater)) shows in:

        (1)  Part Va Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) the rater placed an "X" in "Outstanding Performance, Must Promote." 

        (2)  Part Vb (Comment on Specific Aspects of the Performance, Refer to Part III, DA Form 67-9, and Part IVa, b, and c DA Form 67-9-1) included, in part, the comment:  "Unfortunately this talented officer used poor judgment upon redeployment and was arrested for drinking and driving.  I am confident that he has the determination to overcome this and believe that he has great potential to continue to serve our Army."

	     (3)  Part Vc (Indicate a Potential Career Field for Future Service) the rater indicated "He would serve the Army best in OPCF/25."

	e.  Part Vll (Senior Rater)

	     (1)  Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) the senior rater placed an "X" in the "Best Qualified" block.  

	     (2)  VIIb (Potential Compared with Officers Senior Rated in Same Grade) contains a "No Box check." 

	     (2)   VIIc (Comment on Performance/Potential) the senior rater states:

"Concur with the rater's comments.  Prior to his decision to drink and drive upon our redeployment from Afghanistan, [the applicant] had my complete trust and confidence as my Battalion Signal Officer.  His performance during Operation Enduring Freedom was exceptional - he remains one of the hardest working, most innovative and resourceful Signal Officers with whom I have served.  I believe [the applicant] has learned from his mistake and has gotten the help he needs to ensure this never happens again.  I am confident he has the talent, discipline, and desire to overcome his mistake.  I believe he has much more to offer our Army.  Following his career course, I would assign him to a Signal battalion primary staff position and after proving his competence, leadership, and professionalism to his new commanders, place him in command of a company.  I know he will excel and the Army will benefit from providing this talented officer a second chance."

8.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  It 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.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

	a.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army Officer Corps.  Performance will be evaluated by observing actions, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, and counseling forms.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

	b.  Paragraph 3-34 states any report with negative comments in Parts Vb or VIIc will be referred to the rated officer by the senior rater for acknowledgment and comment before it is sent to Headquarters, Department of the Army.

	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.  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.

	
	e.  Paragraph 6-13c(2) states that correcting minor administrative errors or deleting one official's rating does not invalidate the report.

9.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) governs the composition of the Army Military Human Resource Record (AMHRR) (formerly known as the official military personnel file) and 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 is filed in the performance section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the OER for the period 15 June 2005 through 23 May 2006 should be removed from his AMHRR, or in the alternative, removal of the negative comments contained therein.

2.  The new evidence presented by the applicant in his reconsideration request wherein he appealed to the President, Selection Board, AHRC, for removal or modification of the contested OER contained the same contentions as his original application to this Board.  The issues presented by the applicant for reconsideration were fully addressed during the initial review of his case by this Board in its original decision.

3.  Contrary to the applicant's assertions that the contested OER should be removed from his AMHRR or modified because it was never referred to him for his comments, this issue is a minor administrative error which does not rise to a level supporting removal from the record or modification.  The contested OER was prepared by the properly-designated rating officials and represented the considered opinions and objective judgment of those rating officials at the time.  He provides insufficient evidence to show the statement that he was arrested for drinking and driving is untrue.  As a result, there remains an insufficient evidentiary basis to support amendment or removal of this report from his AMHRR.

4.  An OER accepted for inclusion in the official record of a Soldier is presumed to be administratively correct.  To justify deletion or amendment of such an OER the applicant must produce clear and convincing evidence that the presumption of regularity should not be applied to the report.  In this case, the applicant has failed to provide any such evidence.

5.  Since there is no reason to remove the contested OER from his records, there is also no reason to authorize a Special Selection Board to consider him for promotion.

6.  Based on the foregoing, the applicant is not entitled to the 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 to amend the decision of the ABCMR set forth in Docket Number AR20120008647 dated 24 July 2012.



      _______ _   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)                                         AR20120020572



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ABCMR Record of Proceedings (cont)                                         AR20120020572



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