IN THE CASE OF:	  

		BOARD DATE:	  15 August 2013

		DOCKET NUMBER:  AR20130005323 

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 correction of an Officer Special Review Board (OSRB) decision denying removal of an Officer Evaluation Report (OER) from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).  

2.  The applicant essentially states the following in a four-page memorandum:

	a.  He requests removal of the OER covering the period 2 February 2009 through 5 August 2009 from his AMHRR.  He believes the denial was unfair and unjust.

	b.  He appealed the contested OER citing substantive inaccuracies, as well as providing supporting evidence.  The OSRB stated he did not provide "sufficient evidence to refute the rater's assertion that he [the applicant] confessed to an extra-marital affair to [his rater]."

	c.  He states the OSRB decision indicated the Commanding General (CG) did not conclude there was no evidence to support the charge, only that there was insufficient evidence to support the charge.  The CG refused to issue a General Officer Memorandum of Reprimand (GOMOR) because he did not believe that was the case; he believed it was more likely than not that he had not committed the offense.  The applicant states the same is true of the Army Regulation 15-6 Investigating Officer (IO).  The IO had access to all available information and could not conclude that he committed the offense.

	d.  The OSRB indicated he did not provide sufficient evidence to refute the rater's assertion that he confessed to an extra-marital affair to the rater.  With only two of them present when he allegedly made the statement, there's absolutely no other evidence he could provide other than his own statement.  Applying the standard applied by the OSRB, any member of the rating chain can claim anything, so long as it was allegedly made in a one-on-one conversation, and it would stand on appeal.

	e.  The Army Regulation 15-6 investigation determined the charge of adultery was unfounded.  In spite of this, his rater placed comments in his OER claiming he admitted to an adulterous affair to him.  The contested OER was completed and submitted well after the matter was resolved and the CG had already directed that no further action be taken.  The rater's decision that he was guilty was sufficient to override the IO's and CG's combined decisions to the contrary.  His rater decided that his opinion was enough to type a handful of words which would ensure his career ends without any possibility of presenting a defense.

	f.  The unjust OER has followed him to each subsequent assignment.  Not only do the rater's comments communicate to all future commanders that he was found guilty of something in the past when he was not, they virtually guaranteed that he will never be measured fairly in the future.  

3.  The applicant provides:

* a four-page self-authored statement, dated 8 March 2013
* Officer Record Brief
* four DA Forms 67-9 (OER)
* two OER appeal packets with enclosures
* Army Regulation 15-6 investigation memorandum

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, he was appointed as a Reserve warrant officer on 21 August 2007 in the rank and grade of warrant officer one (WO1).  He was promoted to chief warrant officer two on 21 August 2009.  He is currently serving on active duty.  

2.  In April 2008, he was assigned to the 296th Brigade Support Battalion, 3rd Stryker Brigade Combat Team (SBCT), 2nd Infantry Division, as the Brigade Ammunition Warrant Officer.  

3.  On 27 August 2009, an IO completed an Army Regulation 15-6 investigation.  The appointing authority had directed the following:
* determine whether the applicant had a positive urinalysis without a proper prescription
* determine whether he took the proper steps to close out the 3rd SBCT's open documents for ammunition turn-in
* determine whether he forged his Enlisted Record Brief documentation to say he attended an ammunition course required to be accepted into Warrant Officer Candidate School (WOCS)
* determine whether he failed to attend mandatory training while deployed
* determine whether he committed adultery

4.  The IO found inconclusive evidence as to whether or not the applicant committed adultery by having a sexual relationship with another Soldier's wife.  The applicant's wife stated the applicant was having an affair with another Soldier's wife.  She later recanted the statement.  Several sworn statements made by officers in the unit contradicted each other.  The applicant declined to answer questions related to the investigation.  One officer stated the applicant had claimed to have had no physical contact with the other Soldier's wife.  Another officer stated the applicant had told him he (the applicant) had had a one-time sexual encounter with the other Soldier's wife.    

5.  After the investigation the IO made the following recommendations:  

* that Uniform Code of Military Justice (UCMJ) action be taken against the applicant for the charge of not having a prescription for a controlled substance before the 29 October 2008 urinalysis
* no action be taken against the applicant on the charges of dereliction of duty, falsifying documentation to get into WOCS, failing to report, and adultery

6.   On 2 February 2010, the applicant received the contested OER.

	a.  In Part IV (Performance Evaluation - Professionalism), the rater placed an "X" in the "no" block for Integrity.

	b.  In Part Vb (Performance and Potential Evaluation - Rater), the rater placed an "X" in the block for "Unsatisfactory Performance, Do Not Promote."  In the block provided for his comments, the rater stated, in part, "[The applicant] has demonstrated a lack of integrity during this rating period that makes him incompatible with continued military service.  While serving on the Brigade Torch Party [the applicant] confessed to me that he had engaged in an extra-marital affair with a woman he met at the National Training Center (NTC) who was also married.  Several days later when questioned by his Company Commander [the applicant] denied having an extra-marital affair.  [The applicant] lied to one of the two officers and as such has demonstrated that he does not have the integrity required for service as a leader in the U.S. Army."   

	c.  In Part Vc (Comment on Potential for Promotion), the rater stated, "[The applicant] has no potential for promotion or continued service in the U.S. Army. His demonstrated lack of integrity is incompatible with military service and renders him incapable of leading soldiers with any credibility.  [The applicant] should be considered for termination from service."

	d.  In Part VIIa (Promotion Potential) the Senior Rater (SR) placed an "X" in the box for "Do Not Promote."  In the block provided for his comments, the SR stated, "[The applicant] is an officer of questionable moral character.  [The applicant] possesses solid technical acumen; however, his demonstrated lack of integrity and apathy renders him incapable of effectively serving as a member of this unit.  Specifically, [the applicant] misinformed senior commissioned officers and served as a point of friction and failure in the conduct of SPO level ammunition operations, where his inability to effectively manage ammunition in support of brigade level activities has resulted in inadequate support and losses of accountability.  This demonstrated lack of reliability and questionable integrity reflects poorly on our officer corps.  As such, there exists limited utility in the continued service of [the applicant].  Regrettably, I cannot in good conscience recommend this officer for promotion or retention in the Army.  Officer failed to submit a DA Form 67-9-1."

7.  On 10 April 2010, the applicant requested a Commander's Inquiry (CI) into the contested OER.  The applicant stated his SR and rater included statements in his OER referencing issues related to an open Army Regulation 15-6 investigation.  Specifically, his rater mentioned an extramarital affair in Part V of his OER which was the subject of the Army Regulation 15-6 investigation.  No conclusive evidence was found in support of the alleged affair.  The applicant further stated the SR alleged there were several errors in forecasting required ammunition.  The applicant stated the contested OER was the result of bias from his SR.

8.  On 23 April 2010, the CI was concluded.  The reviewing authority determined that no illegality, injustice, regulatory violation or procedural error had occurred with regard to the contested OER.

9.  On 3 October 2010, the applicant appealed the contested OER to the OSRB in Docket Number AR20110000451, dated 19 May 2011, requesting it be removed from his AMHRR.  


10.  With respect to the evidence the applicant provided with his appeal, which consisted of four statements in support -- a handwritten statement from his spouse, a statement from a staff sergeant (SSG), and statements from two civilian installation employees.  The OSRB indicated the applicant failed to provide a copy of the Army Regulation 15-6 investigation.  

11.  The OSRB determined there was no evidence that the rating officials' comments on the report were anything other than their considered opinion of the applicant.  The OSRB concluded that, in the absence of more compelling evidence which clearly and convincingly showed that the presumption of regularity should not be applied to the report, or that it contained material errors, was inaccurate, or unjust, removal of the contested OER was not recommended.

12.  On 4 January 2012, the applicant requested reconsideration of the previous appeal to the OSRB in Docket Number AR20110000451, to remove the contested OER from his AMHRR.  The applicant provided new evidence to support his contentions.  As new evidence, he provided a three-page copy of the Army Regulation 15-6 investigation memorandum for record; a copy of a memorandum from the Chief, Criminal Law Division; and copies of email from his chain of command.

13.  With respect to the new evidence in support of his appeal, the OSRB determined the Army Regulation 15-6 investigation was inconclusive as to whether he committed adultery.  He also did not have a prescription before the 29 October 2008 urinalysis and obtained the prescription the day after the urinalysis.  The finding was inconclusive as to whether or not he forged a certificate for a prerequisite ammunition school.

14.  The OSRB stated that, contrary to the applicant's contentions that the acting CG concluded that there was no evidence to support any charge of adultery and dismissed the matter outright, the commander determined there was not sufficient evidence to issue a GOMOR, and the Army Regulation 15-6 investigation found that the evidence was inconclusive regarding whether or not the applicant committed adultery. 

15.  The OSRB also determined he failed to provide sufficient evidence to refute the rater's assertion that he (the applicant) confessed to an extra-marital affair to him (the rater) and he failed to provide sufficient evidence to support the removal of his SR's comment regarding his failure to manage ammunition draws.

16.  The OSRB concluded the new evidence did not establish clearly and convincingly that the presumption of regularity should not be applied to the contested OER under consideration or that action was warranted to correct a material error, inaccuracy, or injustice.  By unanimous vote, the OSRB determined the overall merits of the case were insufficient as a basis to amend the decision of the OSRB set forth in Docket Number AR20110000451.

17.  The applicant provided copies of his last three OER's, starting 6 August 
2009 through 7 September 2012.  His raters indicated that he has unlimited potential for promotion.  His SR's indicated he was either best qualified or fully qualified for promotion.  They all recommended sending him to Advanced Warrant Officer Course.  

18.  The applicant provided a memorandum, dated 16 September 2011, from the Chief, Criminal Law Division, Office of the Staff Judge Advocate, Joint Base Lewis-McChord, WA.  He stated:  

	a.  On 22 October 2009, the Acting CG of Fort Lewis issued a GOMOR to the applicant for involvement in an inappropriate relationship and wrongful use of amphetamines.  

	b.  On 6 November 2009, the Acting CG heard the rebuttal statement from the applicant and determined there was insufficient evidence to issue the GOMOR to him.  The Acting CG destroyed the GOMOR and no further action was taken.  The hearing was witnessed by the Chief, Military Justice and the applicant's battalion commander.

19.  There is no evidence showing the applicant submitted rebuttal comments for the referred report.

20.  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.  Performance will be evaluated by observing action, 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 3-23 stipulates, in pertinent part, that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  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.  Any verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's use of verified derogatory information.  For example, when an interim report with verified information is made available to a commander, the verified information may be included in an OER.

     c.  Paragraph 3-29a allows certain items to be mentioned in a Soldier's evaluation report, when substantiated by a completed command or other official investigation:  (a) involvement in a driving under the influence charge; (b) physical or mental incapacitation; (c) acts of sexual misconduct, physical, or mental abuse; (d) criminal acts reported in official military or civil authorities; (e) behavior that is inconsistent or detrimental to the good order, conduct and discipline; (f) adverse equal opportunity investigation; (g) acts of reprisal; and (g) activities or behavior otherwise prohibited by Army Regulation 600-20 (Army Command Policy).

     d.  Paragraphs 6-3 and 6-4 state, in pertinent part, that the primary purpose of a CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at Headquarters, Department of the Army.  

     e.  Paragraph 6-11d states that for a claim of inaccuracy or injustice of a substantive type in an evaluation report, evidence will include statements from third parties, rating officials or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  

21.  Army Regulation 600-8-104 (AMHRR Management/ Records) governs the composition of the AMHRR and states that 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.  Appendix B states the DA Form 67-9 is filed in the performance section of the Soldier's AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request to change the OSRB decision denying removal of an OER from his AMHRR.  

2.  The record shows his OER for the period ending 5 August 2009 was accepted by Headquarters, Department of the Army and is included in his AMHRR.  As such, the document is presumed to be administratively correct and to represent the considered opinions and objective judgment of his rater and senior rater that, during the rating period covered by the contested OER, he demonstrated a lack of integrity and made errors forecasting required ammunition during training.  There is no evidence the applicant submitted rebuttal comments for the OER.

3.  The applicant contends that he did not confess to his rater that he had an extra-marital affair or that he later denied having an extramarital affair to his company commander.  He states based on the CG's decision not to issue him a GOMOR and the AR 15-6 investigation, he was effectively exonerated of any wrongdoing.  However, the CG and the IO did not determine that the extramarital affair did not happen; rather, they determined the evidence was inconclusive.  This finding is not evidence that the rater's comments on the contested OER were false.  These findings have no bearing on what the rater knew to be true based on what he was told by the applicant.  The available evidence shows no reason to doubt the rater.  

4.  In order to justify deletion or amendment of an evaluation report, the applicant 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.  
5.  The applicant has failed to show, by clear and convincing evidence that his OER contained a material error, inaccuracy, or injustice.  Therefore, he is not entitled to the requested relief.  The contested OER contained in his AMHRR is properly filed and should not be removed.

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)                                         AR20130005323





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ABCMR Record of Proceedings (cont)                                         AR20130005323



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