IN THE CASE OF:	  

		BOARD DATE:  25 June 2013

		DOCKET NUMBER:  AR20130007882 


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:

	a.  removal of his DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 11 October 2009 through 14 December 2009 from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File) and

	b.  removal of a general officer memorandum of reprimand (GOMOR), dated 9 January 2010, from his AMHRR.

2.  The applicant states:

	a.  He is a good Soldier and a competent leader.  In one regrettable incident, he went from grace to disgrace in the eyes of his commander.  In December 2009 while deployed to Afghanistan, he was involved in an altercation with a second lieutenant.  His weapon was taken away, he was restricted to his quarters for about 2 weeks, he was fired, and he was sent back to Fort Bragg in January 2010.

	b.  Three years later he was flagged and he had to appear before a Board of Inquiry which recommended his retention in the Army.  The Board members recognized his passion for the Army as well as his technical expertise and professionalism.

	c.  In this regrettable incident, he was defending himself after being pushed up against a building by a second lieutenant.  Now that he has been cleared by the Board of Inquiry, he would appreciate it if his records were corrected.

3.  The applicant provides:

* Board of Inquiry and results
* military awards
* certificates of training, appreciation, and completion
* OER's and academic evaluation reports (AER's)
* photographs of his family
* character reference letters
* Officer Record Brief
* retirement paperwork

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the U.S. Army Reserve and the Regular Army, the applicant was appointed as a warrant officer one in the U.S. Army Reserve on 19 August 2003 with concurrent order to active duty.  He was promoted to chief warrant officer two on 19 August 2005 and to chief warrant officer three in the Regular Army on 1 June 2009.

2.  The contested OER is a 2-month relief-for-cause (RFC) OER covering the period 11 October 2009 through 14 December 2009 for duties as the senior automotive maintenance technician for Company E, 3rd Battalion, 82nd Aviation Regiment, in Afghanistan.

3.  In Part IV (Performance Evaluation – Professionalism), the rater placed an "X" in the "No" block for all Army values (Honor, Integrity, Courage, Loyalty, Respect, Selfless-Service, and Duty).

4.  He was rated "Unsatisfactory Performance, Do Not Promote" in Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) by his rater.  His rater stated, "[Applicant] performed as the battalion Maintenance Technician in a satisfactory manner for the majority of the rating period.  As the battalion Ground Maintenance Technician, Quality Control and Technical advisor, he was responsible for the quality control and quality assurance of maintenance on Task Force Talon rolling stock in support of Operation Enduring Freedom X.  [Applicant's] technical proficiency contributed to the overall success of the Task Force's Ground vehicle maintenance program.  However, his actions on 14 DEC 09, which resulted in an investigation by the Kandahar Military Police finding him in violation of Article 90 of the Uniform Code of Military Justice, indicates poor decision making, lack of military bearing and self-control, and failure to perform his duty as an officer in the United States Army.  His actions as they relate to the good order and discipline of a unit are not commendable.  He is hereby relieved of his duties as the Battalion Maintenance Technician."

5.  He was rated "Do Not Promote" in part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) by his senior rater.  "BELOW CENTER OF MASS – RETAIN" was entered in part VIIb (Potential Compared with Officers Senior Rated in Same Grade) by his senior rater.  His senior rater stated, "[Applicant] is a technically sound ground maintenance technician.  He is proficient in ground maintenance tasks and I relied on his expertise to support this Aviation Battalion Task Force.  However, his technical competence has been overshadowed by conflict with superiors.  Ultimately, he was relieved of duties due to actions unbecoming of an officer.  Do not promote; however, retain at current grade to capitalize on his technical expertise as a ground maintenance technician.  Service Member refused to sign this report."

6.  On 9 January 2010, he received a GOMOR for assaulting and engaging in disrespectful conduct toward a superior commissioned officer (second lieutenant) on 14 December 2009 in Afghanistan.  On 27 January 2010, the commanding general directed permanently filing the GOMOR in the applicant's AMHRR.

7.  His OER's for the periods 15 December 2009 through 9 June 2012 show he was rated "Outstanding Performance, Must Promote" by his raters and "Best Qualified" by his senior raters.

8.  On 11 December 2012, he submitted a request for voluntary retirement in lieu of elimination effective 31 October 2013.

9.  On 22 January 2013, a Board of Inquiry found:

	a.  by unanimous decision, there was sufficient evidence to support a finding that the applicant engaged in an act of personal misconduct as substantiated by a GOMOR, dated 9 January 2010, and a referred OER for the period 11 October 2009 through 14 December 2009 filed in his AMHRR; and

	b.  by unanimous decision, there was sufficient evidence to support a finding that the applicant engaged in conduct unbecoming an officer as substantiated by a GOMOR, dated 9 January 2010.



10.  The Board of Inquiry recommended:

* his retention in the Army
* his assignment stabilization
* approval of his retirement request by the U.S. Army Human Resources Command (HRC)

11.  On 12 March 2013, the approval authority approved the Board's findings and recommendations.

12.  A review of the performance section of his AMHRR on the integrated Personnel Electronic Records Management System (iPERMS) revealed copies of the GOMOR and OER in question.

13.  He provided character reference letters from a colonel, lieutenant colonel (Chaplain), major, captain, and chief warrant officer four who support his retention and continued service in the Army.

14.  Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted by Headquarters, Department of the Army, and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Requests that an evaluation report in a Soldier's AMHRR be altered, withdrawn, or replaced with another report will not be honored.  The regulation also states the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that clearly and convincingly establishes that:

	a.  the presumption of regularity will not be applied to the report under consideration and

	b.  action is warranted to correct a material error, inaccuracy, or injustice.

15.  Army Regulation 623-3, paragraph 3-54, states an OER is required when an officer or warrant officer is RFC regardless of the rating period involved.  RFC is 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/her performance of duty.

16.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  It states the purpose of the AMHRR is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.

17.  Army Regulation 600-8-104, appendix B (Documents Authorized for Filing in the AMHRR and/or iPERMS) further states letters of reprimand and DA Forms 67-9 will be filed in the performance section of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, a senior warrant officer, received a GOMOR for assaulting and engaging in disrespectful conduct toward a second lieutenant.  This misconduct was the basis for his RFC OER.

2.  He contends his GOMOR and RFC OER should be removed from his AMHRR because a Board of Inquiry cleared him.  Although the Board of Inquiry recommended his retention in the Army, that board also found that he did engage in the misconduct for which he received the RFC OER and the GOMOR.

3.  There is no evidence that the GOMOR was improperly imposed.

4.  There is no evidence that the information contained in the RFC OER is not administratively correct, was not prepared by the proper rating officials, and does not represent the considered opinion and objective judgment of the rating officials at the time of preparation.

5.  The GOMOR and RFC OER are properly filed in his AMHRR in accordance with the governing regulation.

6.  In view of the foregoing, there is an insufficient basis for granting 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 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)                                         AR20130007882



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ABCMR Record of Proceedings (cont)                                         AR20130007882



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