IN THE CASE OF:	  

		BOARD DATE:	  26 November 2013

		DOCKET NUMBER:  AR20130016087 


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 removal of a relief-for-cause (RFC) officer evaluation report (OER) covering the rating period 2 October 2009 through 7 August 2010 from his records.

2.  The applicant states the referred OER in his record is not justified.  He received a referred OER on 7 August 2010 that has no legal grounding.  All charges surrounding the incident were dropped yet the referred OER remains in his file.  Because he was not convicted, the referred OER should be removed from his record.  This particular performance evaluation was tendered well in advance of the completion of his civilian legal process, effectively usurping his legal due process.  In his command’s haste, they judged him prematurely and as a consequence, he received a performance evaluation that ultimately is not legally justified.  Since all charges were dropped, his performance evaluation dated 7 August 2010 should be removed from his record.

3.  The applicant provides the contested OER and an order of dismissal.

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.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army on 24 June 2006.  He completed the Quartermaster Officer Leader Course.  He was promoted to captain (CPT) on 1 September 2009. 

3.  At the time of the contested OER, he was assigned as the Rear Detachment Officer in Charge (OIC) of the Rear Detachment, 601st Aviation Support Battalion, 1st Infantry Division, Fort Riley, KS.  

4.  In August 2010, he was relieved for cause due to his misconduct and received an RFC OER for the period 2 October 2009 through 7 August 2010.  His rater was the battalion commander and his senior rater was the brigade commander.  
The OER shows:

	a.  in Part IVa (Performance Evaluation – Professionalism – Army Values), the rater placed an "X" in the "No" block for "Honor," "Integrity," and "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 skill "Conceptual" and 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] is being removed as the 601st Aviation Support Battalion, Rear Detachment Officer in Charge because of his lapse of judgment by operating a motor vehicle while under the influence of alcohol.  Up to that point, his performance as the officer in charge of the Brigade's largest rear detachment was superior.  His dedication to duty was undeniable and he consistently demonstrated the unsurpassed ability to analyze a problem, plan and execute a decisive course of action and bridge the gap between the military and family members creating the positive atmosphere that allowed families to flourish, in spite of their hardships.  The training and preparation he provided late deploying Soldiers was impeccable and the team of rear detachment cadre he led ensured every Soldier in their charge received the highest level of leadership, care and respect.  [Applicant] is a versatile, capable, and knowledgeable officer; this lapse of judgment should not characterize his potential for future assignments.  

	d.  in Part Vc (Comment on Potential for Promotion), the rater entered the following comment, "promote and send to the Captain's Career Course"; 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:

[Applicant] was removed as the Rear Detachment Officer in Charge for operating a motor vehicle while intoxicated.  This lapse of judgment marred what was an absolutely stellar performance in who I believed to be a superior Rear Detachment Officer in Charge.  His demeanor and professionalism were perfect for the mission and the Soldiers and families responded to him.  Retain on active duty; consider for promotion. 

5.  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 28 September 2010 and by him on 1 October 2010.  It was then posted by Headquarters, Department of the Army (HQDA) to his Army Military Human Resource Record (AMHRR) on 25 October 2010. 

6.  He submits an order for dismissal, issued by the District Court of Gear County, Kansas, on 11 April 2012, which indicates since the applicant had satisfactorily completed all the requirements of diversion and that the 12-month period of diversion expired on 1 October 2011 the Court ordered the remaining counts of the complaint/information dismissed, with prejudice. 

7.  There is no indication the applicant appealed the contested OER through the U.S. Army Human Resources Command to the Officer Special Review Board.

8.  Army Regulation 600-8-104 (AMHRR) 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.

9.  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 available evidence shows the applicant was removed from his position as the Rear Detachment OIC after having operated a vehicle while under the influence of alcohol.  Also as a result, the applicant received an RFC OER.  The OER was referred to him for comments but he elected not to submit any.  The OER was filed in his official records and again he elected not to appeal it.  

2.  The applicant then participated in a diversion program.  Generally speaking, a diversion program lasts a minimum of one year, and there are a number of special conditions of diversion required of each participant.  Upon successful completion of all of the conditions required of him or her, the participant will automatically graduate from the program, and the driving under the influence charge would be dismissed. 

3.  Although the applicant successfully completed the diversion program, this does not negate the fact that the applicant had a lapse of judgment when he operated a vehicle while under the influence.  It does mean the court acquitted him of the charge.  This derogatory information was sufficient for his rating officials to relieve him of his command.
4.  An OER 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.  The subsequent completion of the diversion program and the resultant dismissal of the count did not erase what occurred during the rating period in the RFC OER.

5.  By regulation, to support removal 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.

6.  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 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)                                         AR20130016087



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ABCMR Record of Proceedings (cont)                                         AR20130016087



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