IN THE CASE OF:	  

		BOARD DATE:	  7 November 2013

		DOCKET NUMBER:  AR20130011956 


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 an earlier request to remove his DA Form 67-9 (Officer Evaluation Report (OER)) covering the rated period 
7 June 2008 through 4 May 2009 from his Army Military Human Resource Record (AMHRR).

2.  The applicant states:

	a.  on 21 May 2012, he stood before an Elimination Board.  It was determined by the board that he would be retained.  

	b.  in accordance with Army Regulation 600-37 (Unfavorable Information), chapter 7, he believes that the OER should be removed from his AMHRR.

	c.  appeals to the OER Branch for remediation have been denied, as three years had passed prior to the board hearing.

	d.  his record from the time he was commissioned to the present (excluding the time of the OER) has been impeccable.  Even during the OER in question he contributed positively to his detachment.  This can be evidenced in the OER itself and by the letters of recommendation for promotion by his rater and senior rater.  





3.  The applicant provides:

* Results of the Board of Inquiry (BOI)
* BOI proceedings and transcripts
* Memorandum, dated 15 August 2012, from the U.S. Army Human Resources Command, Fort Knox, KY
* Letters of recommendation 

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 AR20120014718, on 6 December 2012.

2.  He provides documentation which shows on 21 May 2012 a BOI was convened pertaining to his elimination from military service.  The board found:

* the evidence did support the allegation of substantiated derogatory activity resulting in a referred OER for the period 7 June 2008 through 4 May 2009
* the evidence did support the allegation of conduct unbecoming an officer as indicated by his OER for the period 7 June 2008 through 4 May 2009
* since the incident, he has overcome the issues and is performing in an exemplary manner

3.  The BOI recommended he be retained on active duty.  The appointing authority approved the findings and recommendations of the board.

4.  He provides a letter of recommendation for promotion, dated 6 August 2012, from the senior rater at the time in question who attests:

	a.  he was the applicant's senior rater from June 2007 to May 2009.  The applicant's primary mission while under his command was the establishment and operation of a strategic Joint Tactical Ground Station early missile warning detachment in Japan.  Though this was a large and daunting task for a junior company grade officer, he ensured the detachment was functioning properly and providing critical information to operational and strategic organizations on schedule.  He was also responsible for training and caring for the specially trained Soldiers that manned this U.S. Army organization on a U.S. Air Force base. 

	b.  during his command, he began to lose confidence in the applicant's leadership.  He was under considerable professional and personal stress.  His Company Commander, Brigade Commander, and he took a close interest in the applicant, providing counsel on his performance and providing a path for him to quickly improve.  His slow response along with the criticality of the mission and remote nature of the detachment led the command team to determine it was in the best interest of the U.S. Army to remove him from his leadership position. 

	c.  he counseled the applicant that he believed he still had potential for further service in the military if he learned from his mistakes, took responsibility for them, and demonstrated to his future leaders that he could perform to a high standard as a U.S. Army officer.  He has recently reviewed the applicant's record since his time under his command, and he has personally spoken with his most recent Brigade Commander.  Based on this review, he believes the applicant has indeed learned from his mistakes, that he has taken the appropriate actions to demonstrate the experience has made him a much better officer, and he does possess clear potential for successful service at the next higher rank.    

5.  He also provides a letter of recommendation for promotion, dated 
26 September 2012, from the rater at the time in question who attests:

* he believes the applicant should be advanced to the next rank and that he has the potential to serve with distinction in this capacity
* noted in his evaluation in 2009, he saw potential in the applicant despite the shortcomings that led to his removal from position
* after reviewing his subsequent evaluations, he strongly believes the applicant has addressed and resolved the issues that led to his removal
* he is an extremely confident and competent officer with a strong desire for continued service to our nation
* recognizing that they serve in a very competitive environment with high standards of conduct and little margin for error, he believes consideration should be given to those who recognize their errors, remediate, and resume high levels of performance
* the applicant fits in this category and deserves consideration for advancement and continued service   

6.  This documentation is new evidence that will be considered by the Board.

7.  On 24 May 2003, the applicant was appointed as a Reserve commissioned officer of the Army, in the rank/grade of second lieutenant/O-1, in the Air Defense Artillery branch.  He entered active duty, completed the Air Defense Artillery Officer Basic Course, and was awarded area of concentration 14B (Short Range Air Defense (SHORAD) Artillery Officer).
8.  On 30 November 2004, he was promoted to first lieutenant, and on 1 July 2006 he was promoted to captain.

9.  On 10 June 2009, he received a relief-for-cause (RFC) OER for his duty performance as a detachment commander.  This report covered 11 months of rated time between 7 June 2008 and 4 May 2009.

	a.  In Part IV (Performance Evaluation – Professionalism), Part A (Army Values), the rater placed a checkmark in the “No” block of number 5 (Respect), indicating a deficiency in that rated area on the part of the rated officer.

	b.  In Part IV (Performance Evaluation – Professionalism), Part B (Leader Attributes/Skills/Actions), the rater placed checkmarks in the “No” blocks of item b.1. (Attributes) numbers 2 (Physical) and 3 (Emotional); item b.2. (Skills) number 1 (Conceptual); and item b.3. (Actions) number 7 (Developing).  These checkmarks indicate a deficiency in those particular rated areas on the part of the rated officer.

	c.  In Part V (Performance and Potential Evaluation (Rater)), Part A (Evaluate the Rated Officer’s Performance During the Rating Period and His/Her Potential for Promotion), the rater placed a checkmark in the “Unsatisfactory Performance, Do Not Promote” block.

	d.  In Part V (Performance and Potential Evaluation (Rater)), Part B (Comment on Specific Aspects of the Performance, Refer to Part III, DA Form 67-9 and Part IVa, b, and Part Vb, DA Form 67-9-1 (OER Support Form)), the rater stated:

Unsatisfactory performance as detachment commander.  CPT [Applicant] was suspended and subsequently relieved from command due to poor judgment, misconduct toward his chain of command and his repeated failure to follow guidance and direction.  This relief was directed by myself.  During a recent command off-site attended by Company, Battalion and Brigade leadership, CPT [Applicant] outwardly showed disrespect towards a superior commissioned officer.  He demonstrated a poor attitude that was observed by subordinates, peers, and senior ranking officers.  Although CPT [Applicant’s] current record Army Physical Fitness Test (APFT) is passing, he failed a record APFT and a diagnostic APFT within the last seven months of this rating period.  CPT [Applicant] did make improvements to the detachment and accomplished several tasks during this rating period.  Specifically, he was directly responsible for the acquisition of temporary administrative space for the detachment as well as coordination for a paving project directed by the Commanding General.  The eventual accomplishment of these tasks was achieved with a significant amount of guidance and direction from his higher command and staff.  Although CPT [Applicant] did make positive contributions toward the unit, they were overshadowed by his poor attitude, bad decision-making, and repeated failure to follow direction.

	e.  In Part VII (Senior Rater), Part A (Evaluate the Rated Officer’s Promotion Potential to the Next Higher Grade), the senior rater placed a checkmark in the “Do Not Promote” block.

	f.  In Part VII (Senior Rater), Part C (Comment on Performance/Potential), the senior rater stated:

Fully concur with rater comments and the decision for relief of CPT [Applicant] from his Joint Tactical Air-to-Ground Station (JTAGS) detachment position.  However, CPT [Applicant] is a competent and capable officer with many redeeming qualities.  Under CPT [Applicant’s] leadership, the detachment functioned well and many important and significant tasks were accomplished, moving the command in a positive direction.  CPT [Applicant] is a young officer who did not always demonstrate sound judgment or fully adhere to all Army values.  For this reason, allowing him to return to a position of influence and leadership is not in the best interest of the good order and discipline of the command.  CPT [Applicant] does have potential for successful service in the U.S. Army if he improves himself and corrects the leadership deficiencies that led to the decision for relief.

10.  The contested RFC OER was referred to the applicant for acknowledgement.  The OER indicates the applicant declined to comment.

11.  His four subsequent DA Forms 67-9 show he was rated "Outstanding Performance, Must Promote" by his raters and he was rated "Best Qualified" by his senior raters.

12.  On 1 September 2013, he was honorably discharged for non-selection, permanent promotion.

13.  A review of the applicant's AMHRR on the interactive Personnel Electronic Records Management System revealed a copy of the contested RFC OER.


14.  Chapter 7 (Appeals and Petitions) of Army Regulation 600-37 states appeals and petitions for removal of unfavorable information are to be directed to the DASEB.  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 of removal from the AMHRR.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

15.  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.

16.  Army Regulation 600-8-104 (AMHHR Management) prescribes the policies governing the AMHRR, Military Personnel Records Jacket, Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 states that once a document is placed in the AMHRR it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records; Department of the Army Suitability Evaluation Board; Army appeal boards; Chief, Appeals and Corrections Branch, Human Resources Command (HRC); AMHRR custodian (when documents have been improperly filed); Commander, HRC, (as an approved policy change to this regulation); and Chief, Appeals Branch, National Guard Personnel Center.

17.  Army Regulation 600-8-104, table 2-1 (Composition of the AMHRR), states an OER will be filed in the performance section of the AMHRR.


DISCUSSION AND CONCLUSIONS:

1.  The contested RFC OER was prepared by the properly-designated rating officials and is properly filed in his military records in accordance with the governing regulation.  There is no evidence that it was improperly prepared or filed.

2.  The BOI results, letters of recommendation for promotion provided by his rater and senior rater at the time in question, and his subsequent outstanding OERs were carefully considered.  However, the applicant has not provided sufficient evidence to show the RFC OER did not represent the considered opinion and the objective judgment of the rater and senior rater at the time of preparation.  Therefore, there is an insufficient basis for granting the applicant's request.

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 AR20120014718, dated 6 December 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)                                         AR20130011956





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ABCMR Record of Proceedings (cont)                                         AR20130011956



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