IN THE CASE OF:  

		BOARD DATE:  6 May 2014

		DOCKET NUMBER:  AR20130014421


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:

The applicant defers his request to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect:

	a.  removal of the applicant's DA Form 67-9 (Officer Evaluation Report (OER)) for the period 11 June 2010 through 30 September 2010 from his Official Military Personnel File (currently known as the Army Military Human Resource Record (AMHRR)) (hereinafter, the subject OER is referred to as the contested OER) and

	b.  the applicant's retroactive promotion to the rank of major (MAJ).

2.  In a 13-page brief to Army Board for Correction of Military Records (ABCMR), counsel contends the contested OER should be removed from the applicant's AMHRR based on material error and injustice.  Counsel contends the applicant was guilty of simple negligence, not gross negligence.  Counsel further contends the information contained in the contested OER is inflammatory, exaggerated, or simply false.

3.  Counsel provides 25 separate exhibits as follows:

	a.  exhibit 1 – a memorandum from the Financial Liability Officer appointed by the 1st Brigade Combat Team (BCT), 2d Infantry Division (ID), to the Assistant Division Commander (Support), 2d ID, dated 25 October 2010, subject:  Findings and Recommendations for Financial Liability Investigation of Property Loss (FLIPL) WAHXXX-10-302XXXX;

	b.  exhibit 2 – a memorandum from the Legal Assistance Attorney appointed to represent the applicant to the Assistant Division Commander (Support), 2d ID, dated 31 October 2010, subject:  Rebuttal of Financial Liability Report 
WAHXXX-10-302XXXX and the Recommendation of Financial Liability Against (Applicant) in the Amount of $162, 248.77;

	c.  exhibit 3 – a memorandum from the Commander, 1st BCT, to the Commander, 2d ID, dated 1 December 2010, subject:  Report of Officer Misconduct in Accordance with 2d ID Policy Letter #36 and Forwarding of FLIPL's WAHXXX-10-302XXXX and WAHXXX-10-302XXXX in Accordance with 2d ID Policy Letter #44 – (Applicant), Formerly Commander, Company B, 302d Brigade Support Battalion (BSB), 1st BCT, 2d ID;

	d.  exhibit 4 – general officer memorandum of reprimand (GOMOR) signed by the Commander, 2d ID, on 14 December 2010;

	e.  exhibit 5 – a memorandum from the applicant to the Commander, 2d ID, dated 19 December 2010, subject:  Response to Memorandum of Reprimand, (Applicant);

	f.  exhibit 6 – a DA Form 7279 (Equal Opportunity (EO) Complaint Form) filed by the applicant on 2 February 2011;

	g.  exhibit 7 – a memorandum from the EO Advisor, 2d ID, to the Commander, 2d ID, dated 8 February 2011, subject:  Notification of Formal EO Complaint;

	h.  exhibit 8 – a memorandum from the Commander, 2d ID, to the Assistant Division Commander (Maneuver), 2d ID, dated 10 February 2011, subject:  Appointment as Army Regulation 15-6 (Procedures for Investigating Officers (IO) and Boards of Officers) IO;

	i.  exhibit 9 – a memorandum for record (MFR) from the Assistant Investigating Officer, Office of the Staff Judge Advocate, 2d ID, dated 12 February 2011, subject:  Conference Call Discussing an EO Complaint by (Applicant);

	j.  exhibit 10 – a memorandum from the Commander, 2d ID, to the applicant, dated 28 February 2011, subject:  EO Complaint dated 2 February 2011;

	k.  exhibit 11 – the contested OER;

	l.  exhibit 12 – a memorandum from the Commander, 1st BCT, to the applicant, dated 7 April 2011, subject:  OER Referral;

	m.  exhibit 13 – a memorandum from the Plans and Operations Officer (appointed as an IO), Division Special Troops Battalion, 2d ID, to the Chief of Staff, 2d ID, dated 13 June 2011, subject:  Commander's Inquiry – (Applicant);

	n.  exhibit 14 – a memorandum from the applicant to the U.S. Army Human Resources Command (HRC), dated 18 August 2011, subject:  Referral Comments for OER, 20100611-20100930, (Applicant);

	o.  exhibit 15 – an unsigned, undated memorandum from the applicant to HRC, subject:  Delay of Promotion and Referral to a Promotion Review Board (PRB), (Applicant);

	p.  exhibit 16 – an MFR from the Commander, 1st BCT, 2d ID, dated 9 September 2011, subject:  Commander, 1st BCT/2d ID Command Review, to Wit:  (Applicant's) Referred OER;

	q.  exhibit 17 – a memorandum from the Chief of Staff, 2d ID, to the applicant, dated 13 September 2011, subject:  Response to Request for a Letter of Endorsement from 2d ID;

	r.  exhibit 18 – a memorandum from a Department of Defense (DOD) Legal Assistance Attorney to Major General E____ C. C____, dated 11 October 2011, subject:  Request Reconsideration of the Assessment of Financial Liability Against (Applicant) under FLIPL's WAHXXX-10-306XXXX, 
WAHXXX-10-306XXXX, and WAHXXX-10-306XXXX;

	s.  exhibit 19 – email messages between the applicant and a fellow officer assigned to the 2d ID;

	t.  exhibit 20 – a letter from the Supervisory Reprisal Investigator, Whistleblower Reprisal Investigations, Office of the DOD Inspector General, to the applicant, dated 16 July 2012;

	u.  exhibit 21 – email messages between the applicant and his attorney;

	v.  exhibit 22 – a memorandum from the applicant's attorney to the Office of Evaluation Appeals, HRC, dated 3 January 2013, subject:  Evaluation Report Appeal for (Applicant) – Report Period 11 June 2010 to 30 September 2010;

	w.  exhibit 23 – a memorandum from HRC to the applicant, dated 29 January 2013, subject:  Evaluation Report Appeal (20100611-20100930);

	x.  exhibit 24 – DA Form 4980-10 (Purple Heart Certificate) with Headquarters, Regional Command-South, Permanent Orders Number 241-004, dated 28 August 2012; and

	y.  exhibit 25 – an MFR from the Brigade Surgeon, 2d Stryker BCT, 2d ID, dated 18 July 2012, subject:  Recommend Approval of the Purple Heart Award for (Applicant).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 4 May 2002 following previous enlisted service in the Florida Army National Guard, the applicant was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant in the Ordnance Branch.

3.  On or about 26 May 2002, he entered active duty.  He was promoted to first lieutenant on 1 December 2003 and to CPT on 1 September 2005.  He completed the Combined Logistics Captains Career Course on 6 July 2007.

4.  On or about 8 September 2008, he assumed command of Company B, 302d BSB, 1st BCT, 2d ID, Korea.

5.  At some point in late Summer/Fall 2010, the applicant prepared to relinquish his company command.  During the change of command inventory, numerous items of organizational equipment were discovered missing.  This discovery resulted in FLIPL's WAHXXX-10-306XXXX and WAHXXX-10-302XXXX which documented the loss in excess of $900,000.00.

6.  He was considered and recommended for promotion to MAJ by the Fiscal Year 2011 (FY11) MAJ, Army, Operational Support (OS), Promotion Selection Board, which convened on 27 October 2010.

7.  On 14 December 2010, he received a GOMOR for:

* being grossly negligent in his administration of his property accountability responsibilities as a company commander
* using improper means to compel subordinates to sign for property
* improperly signing inventories when such inventories were not conducted
* failing to report for duty as instructed by his brigade commander during the period 22-24 November 2010

8.  On 7 April 2011, he received the contested OER based on his duty performance as the Commander of Company B, 302d BSB, 1st BCT, 2d ID, Korea.  He signed the contested OER on 2 May 2011.

9.  The contested OER he submitted with this request (exhibit 11) differs from the contested OER contained within his AMHRR.  The document at exhibit 11 contains a senior rater narrative in Part VIIc (Senior Rater – Comment on Performance/Potential); however, it is not found within the applicant's AMHRR.  The contested OER contained within his AMHRR omits the senior rater narrative due to the lack of senior rater qualification.

10.  The contested OER contained within his AMHRR shows he was rated as a logistics officer in area of concentration 90A (Logistics).  His rater was the battalion commander and his senior rater was the brigade commander.

	a.  Part Ih (Administrative Date-Reason for Submission) shows the report was a permanent change of station report.

	b.  Part Ii (Period Covered) shows the report covered 4 months of rated time commencing on 11 June 2010 and terminating on 30 September 2010.

	c.  In Part IVa (Performance Evaluation – Professionalism – Army Values), the rater placed a checkmark in the "No" block for item 7 (Duty) indicating a deficiency in that rated area on the part of the rated officer.

	d.  In Part Va (Performance and Potential Evaluation – 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.

	e.  In Part Vb (Performance and Potential Evaluation – Comment on Specific Aspects of the Performance), the rater included the following narrative:

During this short rating period [Applicant] completed a twenty-three month company command tour that ended in an unsatisfactory performance as well as an unprofessional manner.  [Applicant] was grossly negligent in his abilities to maintain accountability of United States Government property in excess of $900,000.  Reference Part IV.a.7 of this evaluation report, [Applicant] failed to take proper actions to inventory, account for and document property transactions.  In addition, as the company commander he failed to properly train and supervise his subordinates in command supply discipline and property accountability.  [Applicant] did not display the values, attributes, and skills expected of a leader in the United States Army.  A 
DA Form 67-9-1a [Developmental Support Form] was not completed for the rated officer.  The DA Form 67-9-1a was not completed due to the rated officer initially having less than 60 days for this rating period.  The rating period was extended due to issues discovered during the company change of command.

	f.  In Part Vc (Performance and Potential Evaluation – Comment on Potential for Promotion), the rater included the following comment:  "I recommend that this officer not be selected for promotion to the rank of Major."

	g.  Part VIIc (Senior Rater – Comment on Performance/Potential), contains the following comment:  "I am unable to evaluate the rated officer because I have not been the senior rater for the required number of days."

11.  On 7 April 2011, the contested OER was referred to the applicant for acknowledgement (exhibit 12) and he signed the contested OER on 2 May 2011. 
The OER indicates the applicant elected to make comments which were dated 18 August 2011 (exhibit 14) and attached to the contested OER as an enclosure.

12.  On 13 June 2011, the IO appointed to conduct the Commander's Inquiry filed the report of his investigation into the suspected misconduct that formed the basis of the applicant's GOMOR of 14 December 2010.  This report documented the following findings:

	a.  Finding #1 – (Applicant) was derelict in the performance of his duties in violation of Article 92, Uniform Code of Military Justice (UCMJ), in that he was negligent in the administration of his property accountability responsibilities.  However, (Applicant) was not, as stated in the FLIPL and GOMOR, grossly negligent in the performance of such duties.

	b.  Finding #2 – (Applicant) did not commit the offense of cruelty and maltreatment of his subordinates in violation of Article 93, UCMJ, in that he used improper means to compel subordinates to sign for property.

	c.  Finding #3 – (Applicant) did not make a false official statement in violation of Article 107, UCMJ, when he signed documents certifying that certain inventories were conducted.

	d.  Finding #4 – (Applicant) did not fail to go to his appointed place of duty at the time prescribed in violation of Article 86, UCMJ.

13.  The findings addressed each of the areas of misconduct cited in the applicant's GOMOR of 14 December 2010.  The IO recommended rescission of the GOMOR based on the above findings in that the misconduct cited in the GOMOR was not factually accurate.

14.  On 9 September 2011, the senior rater reviewed the facts surrounding the contested OER and responded to each of the applicant's stated issues (exhibit 16).  Most significantly, after this review, the senior rater narrative in Part VIIc was omitted from the report and a statement noting the lack of senior rater qualification was inserted in its place.

15.  The contested OER was filed in his AMHRR on 28 December 2011.

16.  On 16 February 2012, the Officer Special Review Board denied his appeal of the contested OER.

17.  On 7 March 2012, a PRB convened at the Department of the Army, Secretariat for Selection Boards, Fort Knox, KY, to consider the case of the officer referred before the board.  The PRB recommended the applicant's removal from the FY11 MAJ, Army, OS, Promotion Selection List.

18.  On 25 June 2012, the Secretary of the Army directed his removal from the FY11 MAJ, Army, OS Promotion Selection List.

19.  On 3 January 2013, the applicant submitted another appeal to HRC wherein he appealed the contested OER based on administrative and substantive inaccuracies.  HRC returned his request without action, citing insufficient evidence.


20.  Counsel provided:

	a.  findings and recommendations and the applicant's rebuttal to those findings and recommendations related to FLIPL's WAHXXX-10-302XXXX and WAHXXX-10-302XXXX.  These documents establish the applicant's role and responsibilities vis-à-vis his unit's lack of supply discipline and property accountability;

	b.  a report of officer misconduct, a GOMOR, and the applicant's response to his GOMOR, related to actions identified in subparagraph a above;

	c.  several documents related to the EO complaint filed by the applicant, as well as the resulting investigation and findings.  In this case, the 2d ID Commanding General determined his gender discrimination complaint to be unsubstantiated;

	d.  numerous documents pertaining to the contested OER, its referral to the applicant, the Commander's Inquiry that followed, and documents pertaining to the contested OER;

	e.  other documents related to his requests for appeal of the contested OER; and

	f.  documents related to his award of the Purple Heart.

21.  Army Regulation 623-3 (Evaluation Reporting System (ERS)), effective 10 September 2007, prescribes the policies for completing evaluation reports that support the Army's ERS, including the DA Form 67-9.

	a.  Paragraph 3-39 provides that evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.

	b.  Paragraph 6-11a provides that the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility or administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met regarding those assertions.

22.  Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the Active Duty List.  Paragraph 7-2 states special selection boards (SSB's) may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army, discovers one or more of the following:

* an officer was not considered from in or above the promotion zone by a regularly-scheduled board because of administrative error (SSB required)
* the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary)
* the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary)

23.  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 states the DA Form 67-9 is filed in the performance folder of the Soldier's AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, through counsel, contends the contested OER should be removed from his records, based on material error and injustice and he should be retroactively promoted to MAJ.

2.  Counsel alleges certain errors with the contested OER; specifically, the senior rater's lack of qualification to rate the applicant during the period covered by the contested OER.  The contested OER of record contained in the applicant's AMHRR does not contain a senior rater rating.  Therefore, counsel's arguments as to the validity of the contested OER because of administrative error or the senior rater's lack of qualification have already been addressed.

3.  The arguments brought by the applicant and counsel have been addressed numerous times – during the initial Commander's Inquiry, a follow-on inquiry that resulted from the applicant's EO investigation, and before the OSRB.

4.  Counsel contends the information contained in the contested OER is inflammatory, exaggerated, or simply false.  The voluminous amount of evidence submitted attempts to absolve the applicant of responsibility for the loss of unit property.  Counsel's attempts to differentiate between simple and gross negligence as a means to lessen the importance and relevance of the contested OER are not compelling given the vast magnitude and scope of the loss.

5.  Counsel primarily cites the Commander's Inquiry of 13 June 2011 (exhibit 13) as the document deserving of the most consideration in this case.  In this document, the IO:

* found the applicant to be less culpable than the chain of command found him
* recommended rescission of the GOMOR based on his judgment that the misconduct cited in the GOMOR was not factually accurate

6.  The scope of the Commander's Inquiry of 13 June 2011 was the four areas of misconduct cited in the applicant's GOMOR of 14 December 2010, which differ from the shortcomings discussed in the rater's narrative contained within the contested OER.

7.  The contested OER was referred to the applicant on 7 April 2011 for acknowledgement and rebuttal and he provided a rebuttal memorandum that was filed with the contested OER in his AMHRR.  The contested OER appears to be correct and represents the opinion of the rater at the time the report was rendered.

8.  In order to justify deletion or amendment of a report, counsel or the applicant must produce evidence that establishes clearly and convincingly that:  (a) the presumption of regularity should not be applied to the report under consideration and (b) action is warranted to correct a material error, inaccuracy, or injustice.

9.  Neither counsel nor the applicant provided sufficient evidence to show the ratings in the contested report were in error; that they were not the considered opinions and objective judgments of each rating official at the time the report was rendered; or that the contested report was inaccurate, unjust, or otherwise flawed.  The evidence presented does not establish 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.

10.  The contested OER is facially correct; therefore, there is an insufficient evidentiary basis for granting the applicant's requested relief.

11.  Among the purposes of filing unfavorable information is protection not just for the Soldier's interests but for those of the Army as well.  The applicant demonstrated his inability to properly manage his unit's equipment.  He received a GOMOR and a referred OER.  Consequently, a PRB recommended his removal from the recommended list for promotion to MAJ.  The Secretary of the Army approved that recommendation.

12.  Since there is no material error in his record, he does not qualify for retroactive promotion to MAJ or reconsideration for promotion to MAJ by an SSB.

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)                                         AR20090007349



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ABCMR Record of Proceedings (cont)                                         AR20130014421



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