IN THE CASE OF:	  

		BOARD DATE:	 3 September 2013 

		DOCKET NUMBER:  AR20130012597 


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 a relief-for-cause (RFC) officer evaluation report (OER) covering the rating period 16 June 2009 through 8 September 2009 from his records.

2.  The applicant states the contested OER is erroneous due to substantive inaccuracy and procedural errors.  Lieutenant General (LTG) J____ F. C____, Deputy Chief of Staff, G-3/5/7, Headquarters, Department of the Army (HQDA), supports the removal.  He adds that:

	a.  He was the commander of the Forward Support Company (FSC), 3rd Battalion, 187th Infantry, at the time the general officer memorandum of reprimand (GOMOR) was issued.  He was reprimanded based on allegations that he was guilty of driving under the influence (DUI) of alcohol.  The charge was ultimately dismissed in a civilian court, but not before it led to the issuance of a reprimand from LTG J____ F. C____.

	b.  The reprimand has had a negative impact on his career and it had not been heard in civilian court at the time it was issued.  When the court case was concluded in 2010, it was resolved with a $100.00 fine and a misdemeanor violation.  The DUI charge was dropped to a reckless driving violation.  Since this incident, he has been recommended for leadership positions due to his solid performance.  His brigade commander has also recommended removal of the GOMOR.  He has been rated well among his peers and continues to work hard to be the best infantry officer.

	c.  He was also required to show cause for retention on active duty in November 2011 due to having a GOMOR in his records.  The board found the original charge was not substantiated in court, noted his outstanding performance, and recommended his retention on active duty.

3.  The applicant provides:

* previously-considered OERs, certificates, awards, and other service-related documents
* memorandum from LTG J____ F. C____, undated, subject:  Recommendation to Remove a General Officer Letter of Reprimand

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's previous request for removal of an RFC OER covering the rating period 16 June 2009 through 8 September 2009 from his records.

2.  Counsel states the memorandum from LTG J____ F. C____ is new evidence to accompany the applicant's previously-filed appeal.

3.  Counsel provides no additional evidence.

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 AR20120016428 on 27 November 2012.

2.  The applicant provides a memorandum from LTG J____ F. C____ which was not previously considered.  This is considered new evidence and warrants consideration by the Board.

3.  The applicant's records show he was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 13 May 2006.  He entered active duty on 4 June 2006 and he was promoted to captain on 1 June 2009.

4.  At the time of the contested OER, he was assigned as the Company Commander, FSC, 3rd Battalion, 187th Infantry, 3rd Brigade Combat Team (BCT) 101st Airborne Division (Air Assault), Fort Campbell, KY.

5.  On 5 September 2009, he was apprehended by local authorities in Kentucky after being observed jerking his vehicle to the right and then back to the left.

6.  On 1 October 2009, he was issued a GOMOR by the Commanding General (CG), 101st Airborne Division (Air Assault) (then Major General J____ F. C____), for driving a motor vehicle on 5 September 2009 with a blood alcohol content of .133 percent or higher in violation of Kentucky law.  He acknowledged receipt of the GOMOR on 13 November 2009 and elected to submit a statement in his own behalf.

7.  On 2 December 2009 after carefully considering the reprimand, the circumstances surrounding the incident, and all matters submitted by the applicant in defense, along with the recommendations of subordinate commanders, the CG, 101st Airborne Division (Air Assault), ordered permanently filing the GOMOR in the applicant's Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

8.  On 14 January 2010, he was relieved for cause due to his misconduct and received an RFC OER for the period 6 June 2009 through 8 September 2009 for his duties as a company commander.  His rater was the battalion commander, Lieutenant Colonel D____ G. F____, and his senior rater was the BCT commander, Colonel V____ X. L____.  The OER shows:

	a.  in Part IVa (Performance Evaluation – Professionalism – Army Values), the rater placed an "X" in the "No" block for "Duty";

	b.  in Part IVb (Performance Evaluation – Professionalism – Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for all attributes and skills; however, he placed an "X" in the "No" block for the action "Decision Making";

	c.  in Part Va (Performance Potential Evaluation – Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed an "X" in the "Satisfactory Performance, Promote" block and entered the following comments in Part Vb (Comment on Specific Aspects of the Performance):

[Applicant] served as the Commander of the Forward Support Company, 3rd Battalion, 187 Infantry, for two months during an extremely challenging and intensive cycle in preparations [sic] for counterinsurgency operations in Afghanistan.  However, on 5 September 2009 [Applicant] had a serious lapse in judgment when he made the decision to drink and drive.  That night he was pulled over by the police and blew a 0.13 on the breathalyzer.  This poor decision tarnished his performance in leading the company as it supported the battalion during a two-week Field Training Exercise, maintaining the battalion's vehicles and equipment, and prepared the company and the battalion for a deployment to the Joint Readiness Training Center for a Mission Rehearsal Exercise.  His efforts made a significant contribution in preparing the company for the rigors of combat.  Already selected to attend the Maneuver Captain's [sic] Career Course, [Applicant's] performance needs to be carefully evaluated prior to him being considered for another opportunity to command a company.

	d.  in Part Vc (Comment on Potential for Promotion), the rater entered the following comment, "Due to his lapse in judgment, his promotion to Major should be carefully considered"; and

	e.  in Part VIIa (Senior Rater – Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Fully Qualified" block and in Part VIIc (Senior Rater – Comment on Performance/
Potential), the senior rater entered the following comments:

Unacceptable behavior and arrogance.  [Applicant] exhibited poor judgment by driving a vehicle while under the influence of alcohol.  As a company commander, it was not only his job to comply by, but more importantly, to enforce the BCT's DUI Prevention Program.  His actions are a disgrace to this BCT and a betrayal to the Soldiers under his command.  As such, I have removed him from command.  He has little potential for promotion or future service.

9.  The RFC OER was referred to the applicant for comments.  He elected not to make any comments.  The RFC OER was digitally signed by his rater and senior rater on 14 January 2010 and by him on 19 January 2010.  It was then posted to his AMHRR.

10.  On 4 April 2011 after a comprehensive review of the applicant's petition regarding removal of the contested OER, the Officer Special Review Board unanimously voted to deny the applicant's appeal to have the contested OER removed from his records.

11.  On 29 October 2011 after the applicant had been reassigned to the 82nd Airborne Division – and after elimination action was initiated by HQDA against the applicant – a board of officers convened in Afghanistan.  The board found the applicant did not demonstrate conduct unbecoming of an officer; the DUI charge was not substantiated in court; and the applicant's performance was exemplary before, during, and after the incident.  The board recommended his retention in military service.

12.  On 26 November 2011 after considering the recommendations of the chain of command and the rebuttal matter submitted by the applicant, the CG, 82nd Airborne Division, recommended closing the elimination pertaining to the applicant and retaining him in the Army.  On 24 February 2012, the U.S. Army Human Resources Command terminated the elimination action against the applicant.

13.  On 27 November 2012 after a comprehensive review of the applicant's petition regarding removal of the contested OER, the ABCMR unanimously voted to deny the applicant's appeal to have the contested OER removed from his records.

14.  On 18 July 2013 after a comprehensive review of the applicant's petition regarding removal of the GOMOR from his records, the Department of the Army Suitability Evaluation Board (DASEB) unanimously voted to deny the applicant's appeal to have the GOMOR removed from his records.  However, the DASEB voted to transfer the GOMOR from the performance to the restricted folder of his AMHRR.

15.  He provides an undated memorandum from LTG J____ F. C____, the GOMOR-imposing officer and now the Deputy Chief of Staff, G-3/5/7, HQDA, subject:  Recommendation to Remove a General Officer Letter of Reprimand, who stated:

	a.  He signed a GOMOR for the applicant on 1 October 2009 after his arrest for DUI of alcohol.  Although the applicant was eventually exonerated in civilian court, the seriousness of the charge and the preponderance of the evidence at the time led him to file this adverse action.

	b.  In the GOMOR, he stated, "'I trust this reprimand will impress upon you this fundamental requirement of leadership.'  It is precisely because [Applicant] accepted this challenge that I have chosen to request the DASEB remove the GOMOR from his permanent file.  [Applicant] immediately began setting a new higher standard for himself; this has been reflected in every OER and statement provided in support of this redaction.  I see that his reprimand served as the needed 'wake up call' and [Applicant] now exemplifies the very finest example of an Army officer."

16.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the AMHRR and states the performance folder 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-1 states an OER is filed in the performance folder of the AMHRR.

17.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures for the Army's Evaluation Reporting System.

	a.  An OER accepted by HQDA and included in the official record of an officer was presumed to have been prepared by the properly-designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in an appeal of an OER rests with the applicant.

	b.  In order to justify deletion or amendment of an OER under this regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  Paragraph 1-10 specifies that no person could require changes be made to an individual's OER except to comply with the regulation.  Members of the rating chain, appropriate administrative personnel office, or HQDA would point out obvious inconsistencies or administrative errors to the appropriate rating officials.  This regulation also provides for the opportunity to request a Commander's Inquiry or to appeal referred/disputed reports.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was reprimanded by the CG, 101st Airborne Division (Air Assault), for driving a motor vehicle in the State of Kentucky with a blood alcohol content of .133 percent or higher in violation of State law.  As a result, the applicant's rater relieved him of his command and the applicant received an RFC OER.  He was assessed as "Satisfactory Performance, Promote" and "Fully Qualified" by his rating officials.

2.  The DUI charge appears to have been amended to a misdemeanor violation without any conviction for DUI.  It also appears that the DUI charge was substituted with a lesser charge of reckless driving and a $100.00 fine.  However, this does not negate the fact that the applicant was arrested with a blood alcohol content of .133 percent or higher at the time.  This derogatory information was sufficient for his rating officials to relieve him of his command.

3.  In connection with this relief from command, the applicant received an RFC OER covering the rating period 16 June 2009 through 8 September 2009.  The comments provided by his rater and senior rater mirror each other.  Furthermore, the RFC OER was referred to him for acknowledgement and rebuttal and he elected not to provide comments or rebut.  The contested OER appears to be administratively correct.  An OER is a measure an officer's performance and potential during a specified period of time.  There is no evidence, and the applicant provided insufficient evidence, to show his rater and senior rater did not comply with the regulatory requirements for evaluating him in a fair and unbiased manner.

4.  The applicant is more focused on that the GOMOR-imposing officer has since decided the GOMOR has served its intended purpose, and that since the GOMOR-imposing officer supports removal of the GOMOR from his records, he must also support removal of the contested OER from the same records.  This is a false assumption by the applicant.

5.  A GOMOR is primarily used as a tool for teaching proper standards of conduct and performance.  In that regard, the imposing officer believes the applicant has learned the intended lesson.  An OER, on the other hand, is an assessment of his performance and potential during a specified period of time.  During that particular period of time, his rating officials assessed his performance and potential as indicated in the contested OER.  His subsequent performance did not erase what occurred during the rating period in the RFC OER.

6.  By regulation, to support removal, transfer, or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.  This is not the case here.

7.  The quality of service of a Soldier is adversely affected by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline. 
There is generally a reluctance to remove or transfer adverse information from an AMHRR when it places the applicant on a par with others with no blemishes for consideration for promotions, assignments, and other favorable actions.

8.  Among the purposes of filing unfavorable information is protection for both the Soldier's and the Army's interests.  Here the applicant demonstrated a failure to command.  The fact that he may suffer the consequences of his actions is a natural and reasonable consequence of his performance.

9.  After a comprehensive review of the evidence in the applicant's AMHRR, the applicant's contentions and arguments, and the evidence submitted in support of his application, the applicant did not show by clear and convincing evidence that the contested OER contains a material error, inaccuracy, or injustice, or that his RFC OER should be removed.  Therefore, he 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120016428 on 27 November 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)                                         AR20130012597



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ABCMR Record of Proceedings (cont)                                         AR20130012597



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