BOARD DATE:	    22 April 2014

		DOCKET NUMBER:  AR20130013040 


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 amendment of his DA Form 1059-1 (Civilian Institution Academic Evaluation Report (AER)), covering the period 22 June 2009 through 24 June 2010, by redacting the comments contained in item 13 (Reviewer Comments).  This AER (hereafter referred to as the contested AER) is currently filed in his Army Military Human Resource Record (AMHRR).  

2.  The applicant states:

* the comments were unjustly written by the reviewer as they are in clear violation of Army Regulation 623-3 (Evaluation Reporting System (ERS)); specifically, paragraphs 3-16, 3-19, and 3-20
* the reviewer on the contested AER included extremely prejudicial information; these comments were written before the completion of an investigation
* after a thorough investigation into these allegations, the charges were dismissed
* the dismissal letter is included in the appeal packet that was previously submitted and is included as an enclosure (to this application) 

3.  In a separate memorandum, dated 24 June 2013, the applicant states:

* the reviewer comments in the contested AER are in direct contravention of Army Regulation 623-3
* the reviewer violated 3 paragraphs of Army Regulation 623-3, including paragraphs 3-16 (Evaluation Parameters), 3-19 (Unproven Derogatory Information), and 3-20 (Prohibited Comments)
* the contested AER was completed prior to the completion of an Article    32 hearing, which resulted in the dismissal of all charges
* paragraph 3-16 provides that rating officials' evaluation of a rated Soldier will be limited to the dates included in the rating period of an evaluation report - in this case, the alleged incident occurred outside the rating period
* paragraph 3-19 provides that any mention of unproven derogatory information in an evaluation report can become an appealable matter if later the derogatory information is unfounded
* paragraph 3-20 provides that no remarks about nonrated periods of time or performance or incidents that occurred before or after the rating period will be made on an evaluation report – in this case, the alleged incident occurred outside the rating period of the contested AER

4.  The applicant provides the following documents in support of his request: 

* a memorandum to the Board from the Article 32 Investigating Officer (IO), Colonel (COL) Sxxxx H. Fxxxxxx, dated 3 July 2013
* Officer Special Review Board (OSRB) Records of Proceedings, dated    20 October 2011 and 21 March 2013

CONSIDERATION OF EVIDENCE:

1.  On or about 18 March 2002, after numerous years of commissioned service in the Medical Service Corps, the applicant was appointed as a Reserve commissioned officer of the Army in the Medical Corps, in the rank/grade of captain/O-3.  He currently serves on active duty in the Regular Army.

2.  On 17 July 2004, he was promoted to the rank/grade of major (MAJ)/O-4.

3.  On 10 February 2009, he signed a training agreement for Army Graduate Medical Education (GME) in aerospace medicine, wherein he acknowledged the program requirements, including 1 year of resident training at the University of Texas at Galveston, TX and the Naval Operational Medicine Institute in Pensacola, FL.





4.  On 10 March 2009, while assigned to Headquarters and Headquarters Company, 4th Brigade Combat Team (Airborne), 25th Infantry Division,          Fort Richardson, AK, he received a Change of Rater Officer Evaluation Report (OER).

5.  In early June 2009, he began his permanent change of station (PCS) move to his new duty station, the University of Texas at Galveston, TX.

6.  On 22 June 2009, he began his period of resident training in accordance with his GME training agreement.  On 24 June 2010, he completed this training, which resulted in his receipt of a Master of Public Health degree from the Graduate School of Biomedical Sciences, University of Texas – Medical Branch at Galveston. 

7.  On 20 July 2010, his reviewer completed his portion of the contested AER.  It is presumed he presented the contested AER to the applicant for signature shortly thereafter.

8.  His AMHRR contains the contested AER.  Item 13 of the contested AER contains the following comments: 

As summarized by the following verified derogatory information, [Applicant] demonstrated a lack of integrity and duty that became evident during this evaluation period.  On 30 July 2009, the Canada Border Services Agency (Canada BSA) contacted [Applicant's] former duty station at Ft. Richardson, Alaska.  The Canada BSA informed the command that on 9 June 2009, while in a permanent change of duty status [Applicant] crossed the Canadian port-of-entry in Beaver Creek Yukon Territory in his Privately Owned Vehicle in possession of 20 syringes of Morphine, 10 syringes of Diazepam, 100 pills of Oxycocone [sic], 8 pills of Percocet and 10 pills of Diazepam that were United States Army property.  These controlled items were seized by the Canada BSA.  [Applicant] had not sought nor [sic] received authorization to maintain possession or transport of the items across international borders.  At no time did [Applicant] inform this command or his former command that he possessed the Army's controlled substances or that it had been seized by a friendly foreign government.  His failure to properly secure controlled medical items and subsequent failure to report their confiscation to his command violated Army Regulation 40-61 Medical Logistics Policies Section V Controlled Medical items.  Specifically, his actions violated the following paragraphs of AR 40-61:  1) Para 3-23 Security precautions- [Applicant] failed to provide diligent and property security for controlled medical items including DEA Schedule 2 medications having high abuse potential with severe psychological or physical dependence liabilities and DEA Schedule 3 medications having an abuse potential less than Schedule I and 2 substances.   2) Para 3-24(d) Controlled Substance turn-in – [Applicant] did not turn in or destroy the controlled substances in his possession IAW AR 40-61 and commonly understood controlled items logistical practices.  His poor judgment led directly to the confiscation of the Army's controlled medical items by a foreign government that went unreported to US Government officials and this command for three months (emphasis added).  3) Para 3-27 Periodic inventories of controlled medical items – [Applicant] failed to obtain disinterested officer monthly inventories on these controlled items during the period of his possession.  This verified derogatory information should weigh heavily on the mind of those deciding future assignments and promotions.  APFT (Army Physical Fitness Test): PASS HT/WT: YES 20100408

9.  On 26 July 2010, the applicant acknowledged receipt of the contested AER.

10.  The applicant refused to sign the AER, with the following annotated on the form, “Officer refused [to] check box 8 and to sign on the advice of his attorneys.”

11.  On 9 November 2010, the contested AER was filed in the performance folder of his AMHRR.

12.  He appealed the contested AER on two separate occasions, citing the same errors or injustices he cited in this case; however, on 20 October 2011 and 
21 March 2013, the OSRB denied his appeals of the contested AER. 

13.  He provides a memorandum to the Board from COL Sxxxx H. Fxxxxxx, dated 3 July 2013, who served as the Article 32 IO and was responsible for investigating the alleged incident of 9 June 2009.  

   a. In this memorandum, COL Fxxxxxx provides glowing comments about the applicant's character, professionalism, and proficiency as an Army physician and officer.  

   b. COL Fxxxxxx mentions the Article 32 investigation resulted in the dismissal of charges; however, he does not reveal the investigation findings vis-à-vis the infractions reported on the contested AER.  


   c. His comments do not address the specific incident in question, or the applicant's decision to withhold the incident from his chain of command. 

14.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the ERS.  Chapter 3, of the regulation in effect at the time, governs Army evaluation principles.

   a. Paragraph 3-20 (Evaluation Parameters) provides that each report will be an independent evaluation of the rated Soldier for a specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance or incidents occurring before or after the period covered.  The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, or finding of guilt, or the completion of an investigation.

   b. Paragraph 3-23 (Unproven derogatory information) provides 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 Soldier 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, noncommissioned officer evaluation report, or AER.

   c. Paragraph 3–24 (Prohibited comments) provides that no remarks on an evaluation report will be made on performance or incidents occurring before or after the rating period, except Relief-for-Cause reports based on information pertaining to a previous reporting period; or when the most recent APFT performance or profile data occurred prior to the beginning date of the report. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the entries in item 13 of the contested AER should be redacted because the reviewer comments in the contested AER are in direct contravention of Army Regulation 623-3; specifically, paragraphs 3-16, 3-19, and 3-20.  
2.  These paragraphs reference the current version in effect; these paragraphs were cross-referenced to the applicable paragraphs in effect at the time the contested AER was completed. 

3.  The applicant received the contested AER for his performance of duty during the period 22 June 2009 through 24 June 2010.  

4.  He contends the reviewer erred in his comments by including derogatory comments before the completion of an investigation.  The reviewer comments on the contested AER make no mention of an ongoing investigation or impending charges; however, as permitted by regulation, the reviewer does mention verified derogatory information that affected the applicant's behavior and conduct well into the period covered by the report.

5.  Neither the evidence of record nor any of the applicant's submitted evidence absolve the applicant of either the incident of 9 June 2009 or his lapses in judgment thereafter.  Unless otherwise proven false, he knowingly transported narcotics across an international border without authorization, and he failed to address this (or the resulting confiscation) to members of his chain of command during the reporting period.  This constitutes a breach of trust and ethics by a commissioned officer of the Army.  Neither the applicant nor the Article 32 IO claim the incident did not occur.  Nor do they refute any of the resulting lapses of judgment discussed on the contested AER.

6.  In view of all of the foregoing, there is insufficient evidence to support the applicant's 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 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)                                         AR20130013040



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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