IN THE CASE OF:	  

		BOARD DATE:	  20 February 2014

		DOCKET NUMBER:  AR20130015010 


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: 

	a.  remove a DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 25 March 2009 through 22 July 2009 from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

	b.  be reinstated on the Fiscal Year (FY) 2009 Reserve Components (RC) Lieutenant Colonel (LTC) Army Promotion List (APL).

2.  The applicant states:

	a.  On 23 August 2012, the Army Board for Correction of Military Records (ABCMR) granted partial relief by deleting from Part Vb (Comment on Specific Aspects of the Performance) of the contested OER the words "without informing the chain of command he was going."  However, the Board also concluded the evidence presented initially was insufficient to delete the entire OER and to grant reinstatement of the FY 09 RC LTC APL.  Even with partial modification, he upholds that the contested OER continues to be untrue and unsupported by the facts.

	b.  As part of the conclusions, the Board determined that when the applicant met and corresponded with a Russian woman (Tatiana) online in 2008 and when he went to Russia to meet her, he was still married to his wife (Renee Jo).  Furthermore, the Board recognized there is no direct evidence to support or refute the rater's comments "telling his co-workers about his sexual encounters in Russia."  The Board assumption is that because an old copy of his DD Form 93 (Record of Emergency Data) naming Renee Jo was found in his interactive personnel electronic records management system (iPERMS), he was still married when he began an online relationship and traveled to Russia, which according to the Board brings into question his character and judgment.  He contends he was in fact divorced from Renee Jo on 9 February 2007 when he met and corresponded online with his current wife (Tatiana).

	c.  In order to evaluate if the rater's comments are unjust, you must consider that he was completing the Intermediate Level Education (ILE) and that shortly after he was on ordinary leave for 10 days.  This clearly established that the time period evaluated was approximately 2 months.  It is evident the rater indicated he displays poor judgment due to the incident of traveling to Russia without informing the chain of command, which was overturned by evidence, and the allegations of inappropriate communication to the S-3 shop which the Board did not find direct evidence to support or refute.  Furthermore, the rater indicated his low competence was known by the unit; however, in the previous annual evaluation signed by the same rater, he was recognized as an integral part of his unit for his achievements during that rating period.

	d.  The senior rater's comments were solely based on recommendations of the rater and not facts.  The senior rater did not directly monitor his performance as written in the OER.

	e.  The Board concluded that the exact reason for the applicant's removal from the FY 09 RC LTC APL promotion list was unknown.  The Board upholds a presumption that the provisions of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) were complied with during his removal from the promotion list.  He contends he was removed from the promotion list due to the OER in question.

	f.  On 16 February 2010, the senior rater sent a letter to the Commander of the U.S. Army Human Resources Command (HRC) recommending removal of him from the 2009 LTC APL promotion list.  The senior rater made reference to the OER in question as justification for his recommendation.

	g.  Although initially it was determined that the applicant had not presented sufficient evidence to support the removal of the OER in question, at this point, he feels the new evidence will validate his initial concern.  Any indication of poor judgment and character based on the rater comments was not supported with facts and is untrue and it would be unjust to maintain this OER in his AMHRR.  After removing the evaluation, he requests to be reinstated on the FY 09 RC LTC promotion list since the sole reason for the initial removal was the OER in question.

3.  The applicant provides 11 enclosures outlined on page 2 of his request for reconsideration.

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 AR20120005473 on 23 August 2012.

2.  He provides a divorce decree which shows he and Renee Jo were divorced on 9 February 2007.

3.  He provides an OER covering the period 25 March 2008 through 24 March 2009 which shows he was recognized as an integral part of his unit for his achievements during the rated period by the same rater.

4.  He provides a sworn statement, dated 14 January 2013, from an LTC who states:

* he was assigned to the same unit as the applicant at Fort McCoy from 25 March 2009 to 15 June 2009
* they shared the same rater and senior rater
* in his opinion, the rater and senior rater were far too busy during the rated period to be bothered with monitoring anyone

5.  He provides an undated memorandum from a MAJ who attests:

* he worked with the applicant at Fort McCoy during the period 25 March 2009 to 22 July 2009
* the applicant received mentoring and supervision as needed by his supervisors
* in his opinion, the applicant's rater was not constantly monitoring his performance since he was a field grade officer and as such if you are not making mistakes then oversight is not needed as closely
* in his opinion, the applicant's senior rater did not monitor the applicant's performance during the period 25 March 2009 to 22 July 2009 since he was not making mistakes
* the senior rater was tough if you made a mistake or exhibited poor judgment

6.  He also provides a letter, dated 16 February 2010, from his senior rater to HRC, St. Louis, MO, wherein he recommended the applicant be removed from the 2009 LTC APL promotion list.  The letter stated:

* the OER that ended on 22 July 2009 clearly indicated his substandard performance during that rating period
* his level of maturity and competence during that timeframe clearly did not indicate an officer who displayed potential for promotion to LTC

7.  This documentation provided by the applicant is new evidence that will be considered by the Board.

8.  The applicant is a U.S. Army Reserve (USAR) major (MAJ).

9.  The contested OER covered the period 20090325-20090722 while the applicant was serving in a troop program unit as a MAJ, Plans Officer, for the 181st Infantry Brigade, Fort McCoy, WI.  It was a change-of-rater OER.

10.  The OER shows the following rater entries in Part IV (Performance Evaluation – Professionalism):

	a.  In Part IVa (Army Values), the rater placed an "X" in all of the "Yes" blocks.

	b.  In Part IVb.2 (Leader Attributes/Skills/Actions – Competence), the rater placed an "X" in the "No" block for Conceptual – demonstrates sound judgment, critical/creative thinking, moral reasoning

11.  The OER shows the following rater entries in Part V (Performance and Potential Evaluation (Rater)):

	a.  In Part Va (Evaluate the Rated Officer's Performance during the Rating Period and his/her Potential for Promotion), the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block.

	b.  In Part Vb (Comment on Specific Aspects of the Performance and Potential for Promotion), the rater wrote:

[Applicant] is well intentioned but displays poor judgment.  [Applicant] completed ILE during this rating period; shortly after completion he took 10 days leave to Russia.  Upon his return he filled the S3 shop in on his sexual encounters while there.  His leadership, knowledge, and low competence are known by both the 181st Infantry Brigade and First Army Div[ision] West leadership.  I have relegated his duties to coordinating within the S3 shop and to only perform those duties that would take the day to complete.  I feel it would be unlikely that [applicant] could improve his performance and feel regrettable [sic] that I have not addressed this sooner.

	c.  In Part Vc (Comment on Potential for Promotion), the rater wrote, "He does not perform at the level of a competent major."

12.  The OER shows the following rater entries in Part VII (Senior Rater):

	a.  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 "Do Not Promote" block.

	b.. In Part VIIb (Potential Compared with Officers Senior Rated in the Same Grade), the SR rated the applicant as "Below Center of Mass –Retain."

	c.  In Part VIIc (Comment on Performance/Potential), the SR wrote:

[Applicant] is a nice person but certainly does not exhibit the maturity, professionalism and judgment one would expect of an officer much less one at the field grade level.  He has finished ILE but should not be promoted and certainly not programmed for further schooling.  I have monitored his performance and determined he should not serve the Army and Nation in positions of increased responsibility.  His potential for further service is limited to the needs of the Army.  Officer refuses to sign the evaluation.

13.  The OER was signed by the rater and senior rater on 31 July 2009 and 6 October 2009 respectively.  The applicant refused to sign.  He provided a memorandum, dated 30 September 2009, in which he said he:

* received an "out-of-country" briefing from the Brigade S-2 and assumed the S-2 would inform the brigade executive officer of his plans
* states he never mentioned "sexual exploits," only the places he visited
* he was never formally counseled on his leadership or performance
* he received no long-term tasks only because he was leaving for a new assignment
* the brigade commander never even had a conversation with him, so how could he monitor his performance
* if his performance as a major was substandard, why wasn't it mentioned on his previous OER with an ending date of 25 March 2009
* the subject OER covered a 4-month period, but he was only present for duty for 2 months

14.  The commander's inquiry (CI) determined the applicant met a Russian woman online in 2008.  During the period 20090629-20090710, he planned a trip to Russia to visit his online acquaintance.  In preparation for his OCONUS leave, he prepared a DA Form 31 and a USARC Form 91-R.  At the time of preparation, he used a local Wisconsin address for his leave.  He departed on his leave during the period 29 June 2009 through 10 July 2009 without updating his leave address with an OCONUS Russian address.  Upon his return to work on 13 July 2009, the leave address discrepancy was noted and a CI was ordered.  The applicant, who had transferred from Fort McCoy to Fort Rucker, AL, provided a sworn statement to the investigating officer (IO) on 27 July 2009.  The IO, in an MFR dated 19 April 2010, found "…no cause for further inquiry.  The Soldier was verbally counseled on his responsibility as an officer and fully understands the proper procedures for taking leave."

15.  On 19 January 2011, the applicant appealed the subject OER to the Officer Special Review Board (OSRB).  On 14 July 2011, the OSRB denied the appeal.

16.  His AMHRR shows he was twice non-selected for promotion to LTC.  In a letter, dated 20 January 2012, HRC, Fort Knox, KY, notified the applicant that, although he was twice non-selected by the promotion selection board, a selective continuation board recommended him for continuation in his present grade (MAJ), and the Secretary of the Army approved the recommendation.  The letter states unless he specifically declined continuation, he would be continued to 24 years of service.

17.  HRC Orders C-05-207038, dated 16 May 2012, assigned the applicant to the Retired Reserve for non-selection for promotion.  The effective date was 1 September 2012.

18.  A review of the applicant's AMHRR on the iPERMS revealed a copy of the contested OER.

19.  Army Regulation 623-3 (3 (Evaluation Reporting System) governs OER's and the OER appeal process.

	a.  Paragraphs 3-39 and 6-7 provide that an OER accepted by Headquarters, Department of the Army and included in the official record of an officer is presumed to be administratively correct, 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.  Any appeal will be supported by substantiated evidence. An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered.

	b.  Paragraph 6-11 states the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the 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.  The evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  For a substantive claim of inaccuracy or injustice, evidence will include statements from third parties.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials.

	c.  Paragraph 6-4 provides that alleged errors, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's attention by the rated individual or anyone authorized access to the report.  The primary purpose of a CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.

20.  Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States and of commissioned and warrant officers of the USAR.  Paragraph 3-18 states the authority for the removal of a name from a promotion list rests with the President for commissioned officers (other than commissioned warrant officers), and the Secretary of the Army (SA) for warrant officers (to include commissioned warrant officers).  If an officer is determined to be ineligible for consideration for promotion, the Commander, HRC (Office of Promotions, RC), will verify the officer's ineligibility, explain the basis for the officer's ineligibility to the SA, and advise the SA to request that the President approve removal or administrative deletion of the officer's name from the promotion board report or the promotion list.

21.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the AMHRR 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 ABCMR; Department of the Army Suitability Evaluation Board; Army appeal boards; Chief, Appeals and Corrections Branch, 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.

22.  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 applicant points out that although the Board determined he was still married when he met and corresponded with a Russian woman online in 2008 and he was divorced when he went to Russia to meet her.  In support of his claim, he provides a divorce decree which shows he and Renee Jo divorced on 9 February 2007.  The Board deduced that he was still married based upon a document that was signed by the applicant on 23 July 2009 wherein he identified his wife as "Renee Jo."  Therefore, this presumption by the Board was completely understandable.  What remains questionable is why the applicant would render an official document bearing fraudulent information.

2.  He contends any indication of poor judgment and character based on the rater comments were not supported with facts and is untrue and it would be unjust to maintain this OER in his AMHRR.  In order to justify deletion of a report, the burden of proof rests with the applicant to produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity should not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

3.  The evidence of record supports his contention he was removed from the promotion list due to the OER in question.  He provides a letter from the senior rater to HRC, St. Louis, MO, wherein he recommended the applicant be removed from the 2009 LTC APL promotion list and cited the OER clearly indicated his substandard performance during that rating period.  As the applicant's brigade commander, the senior rater had not only the authority but also an obligation to notify HRC if he felt the applicant was not suitable for promotion.  That said, the senior rater's letter was merely a recommendation.  As a result, the applicant's entire record was reviewed and the decision to remove him from the promotion list was made by the appropriate authority.

4.  The OER is properly filed in the applicant's AMHRR in accordance with the governing regulation.

5.  An OER accepted for filing in the AMHRR is presumed to represent the considered opinion and objective judgment of the rating officials when it was prepared.  Although he contends the OER is untrue and unsupported by the facts, his application must be supported by substantive evidence.

6.  He contends the senior rater did not directly monitor his performance as written in the OER.  However, clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of substantive error or factual inaccuracy.  The applicant has not met this threshold of proof with the type of evidence he submitted.  There was no evidence to disprove that the ratings and comments were the considered opinion and objective judgment of the rating officials when the OER was prepared.  As a result, there is an insufficient basis for granting the applicant's request to remove the OER from his AMHRR.

7.  Based on the foregoing, there is insufficient evidence on which to base granting his reinstatement on the FY 09 RC LTC APL.

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 AR20120005473, dated 23 August 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)                                         AR20130015010



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ABCMR Record of Proceedings (cont)                                         AR20130015010



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