IN THE CASE OF:	  

		BOARD DATE:	    17 January 2013

		DOCKET NUMBER:  AR20120021181 


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 the DA Form 67-9 (Officer Evaluation Report (OER)) for the period 1 March 2007 through 29 February 2008 and all allied documents from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).  As an alternative, he requests transfer of the documents to the restricted section of his AMHRR.

2.  The applicant states there was a personality conflict between him and his rater.  The OER was based on one missed physical training (PT) formation and an accusation that he was absent without leave (AWOL).

	a.  From July 2007 to February 2008, warrant officers in the unit were allowed to do PT on their own.

	b.  He worked at the unit's maintenance facility which was not in the battalion area where his rater worked.  Consequently, he and his rater didn't see each other on a daily basis; however, he did provide his rater weekly situation reports.

	c.  The applicant states he was very ill on 1 February 2008 during which time his rater was unable to contact him and, therefore, considered him AWOL.  At the time, the applicant did not think to contact his rater and notify him of his situation.

	d.  On 7 February 2008, he was told by the rear detachment commander that he should have been at PT formation; however, he was not informed of this prior to the formation.

	e.  The two incidents happened within a 1-week period and 3 weeks before his annual OER was due.

	f.  He states the Department of the Army Suitability Evaluation Board (DASEB) denied his OER appeal.  He was removed from the Fiscal Year 2008 (FY08) chief warrant officer three (CW3) promotion list due to the OER.  He was authorized selective continuation on active duty after twice being a non-select for promotion and he is currently pending a Department of the Army show-cause board.

	g.  He adds that his previous OER's and those he has received subsequent to the OER under review all reflect outstanding performance and potential to fill positions of greater responsibility.

3.  The applicant provides copies of documents relating to the results of his promotion review board, selective continuation on active duty, OER appeal, and elimination action.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 14 January 1994.  He was honorably discharged on 5 June 2003 in the rank of staff sergeant/pay grade E-6 to accept appointment as a warrant officer.

2.  He was appointed as a Reserve warrant officer in the rank of warrant officer one/pay grade W-1 and ordered to active duty on 6 June 2003.  He was promoted to chief warrant officer two/pay grade W-2 in the Regular Army on 6 June 2005.

3.  A review of the applicant's AMHRR maintained in the interactive Personnel Electronic Records Management System revealed the following:

	a.  U.S. Army Human Resources Command (HRC), Alexandria, VA, memorandum, dated 10 October 2008, subject:  Promotion Review Board Results, shows the Secretary of the Army decided to remove the applicant's name from the FY08 CW3 Standing Promotion List.  The reason for the review was based on the applicant having received a general officer memorandum of reprimand, dated 29 February 2008, for dereliction of duty, AWOL, and failure to go to his appointed place of duty.

	b.  An annual OER covering the period 1 March 2007 through 29 February 2008 for the applicant's performance while assigned as Electronic Systems Maintenance Technician, 168th Brigade Support Battalion, Fort Sill, OK, shows:

		(1)  Part II (Authentication) an "X" in block d (This is a referred report, do you wish to make comments?) and an "X" in the "No" block.  This section also shows the OER was digitally signed by the rater, senior rater, and the applicant on 17 November 2008.

		(2)  Part IV (Performance Evaluation – Professionalism) the rater placed an "X" in the "No" block for the following:

* item a (Army Values), block 2 (Integrity) and block 7 (Duty)
* item b (Leader Attributes/Skills/Actions), block b1 (Attributes – Mental) and block b3 (Influencing – Decision-Making)

		(3)  The rater evaluated the applicant's performance and potential as "Unsatisfactory Performance, Do Not Promote."  He commented, in part, "While [Applicant's] performance during this rating period was adequate, his disregard for conduct expected of an officer of his rank, overshadowed his meager accomplishments.  He violated two counts of Article 86 for being AWOL and failing to report for accountability formation."

		(4)  The senior rater evaluated his promotion potential to the next higher grade as "Do Not Promote."  He commented, in part, "[Applicant's] performance during this report period was inconsistent with his current grade, position and experience….[Applicant's] conduct during this reporting period resulted in his receiving numerous counselings."

		(5)  The OER is filed in the performance section of his AMHRR.

	c.  On 25 April 2010, the applicant acknowledged his acceptance of the 
3-year period of selective continuation on active duty.

	d.  An Army Review Boards Agency, Arlington, VA, memorandum, dated 9 February 2011, shows the President, Officer Special Review Board (OSRB), notified the applicant that he approved the unanimous vote of the OSRB to deny the applicant's OER appeal.

		(1)  The OSRB Record of Proceedings and allied documents to the OER appeal are filed in the restricted section of his AMHRR.  The Discussion and Recommendations section states, "It appears the [Applicant's] evaluation report does not contain a material error, inaccuracy, or injustice."

		(2)  The allied documents include, in part, a copy of the Findings and Recommendations concerning the Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) Investigation pertaining to the applicant.  Paragraph 4 (Findings), subparagraph d (Violation of Article 86, Uniform Code of Military Justice (UCMJ), shows the investigating officer wrote, "The incident of AWOL (01 February) and the incident of Failing to Report (07 February) are uncontroverted.  [Applicant] admitted in his sworn statement that he was wrong for not contacting his chain of command on 1 February and throughout the weekend."

	e.  An HRC, Fort Knox, KY, memorandum, dated 15 June 2011, subject:  Initiation of Elimination, shows The Adjutant General of the Army notified the applicant that he was identified by an FY10 Army Promotion Selection Board to show cause for retention on active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2, because of misconduct, moral, or professional dereliction.

	f.  An HRC, Fort Knox, KY, memorandum, dated 9 November 2011, subject:  Termination of Elimination Processing, shows The Adjutant General of the Army notified the applicant that after careful consideration, she decided to terminate elimination processing in the applicant's case.  Prior to the determination, she reviewed the applicant's rebuttal and all relevant documentation, including the recommendation of his chain of command.

4.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System.

	a.  Chapter 4 (Evaluation Report Redress Program), section III (Evaluation Appeals), paragraph 4-7 (Policies), provides that an evaluation report accepted for inclusion in the official record of a rated Soldier's AMHRR is presumed to:

* be administratively correct
* have been prepared by the proper rating officials
* represent the considered opinion and objective judgment of the rating officials at the time of preparation

	b.  An appeal will be supported by substantiated evidence.  An appeal that alleges a report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered.  

5.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the AMHRR.  Depending on the purpose, documents will be filed in the AMHRR in one of six sections:  performance, service, restricted, medical, other, or State/Territory.  Once placed in the AMHRR, the document becomes a permanent part of that file.

	a.  Table B-1 (Authorized Documents) provides guidance for filing the DA Form 67-9 and shows the form will be filed in the performance section of the AMHRR.

	b.  The restricted section of the AMHRR is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It may not be released without written approval from the Commander, HRC, or the Department of the Army Headquarters selection board proponent.  Documents in the restricted section of the AMHRR are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the AMHRR; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

6.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

	a.  Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the AMHRR.

	b.  Paragraph 7-2 (Policies and Standards) provides that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the DA Form 67-9 for the period 1 March 2007 through 29 February 2008 and all allied documents should be removed from his AMHRR or, as an alternative, transferred to the restricted section of his AMHRR.

2.  The applicant's contention that the OER should be removed from his AMHRR was carefully considered.

3.  An evaluation report accepted for inclusion in the official file of a rated officer's AMHRR 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 the rating officials at the time of preparation.  There is no evidence of record that refutes this presumption.

4.  The applicant presents insufficient evidence to demonstrate that transfer of the OER to the restricted section of his AMHRR is in the best interest of the Army.

5.  By regulation, in order to remove a document from the AMHRR, there must be compelling evidence to support its removal.  The applicant failed to submit evidence of a compelling nature to show that the DA Form 67-9 filed in the performance section of his AMHRR is untrue, in error, or unjust.  Therefore, the DA Form 67-9 and the allied documents are deemed to be properly filed and should not be removed 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)                                         AR20120021181



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120021181



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1