IN THE CASE OF:	  

		BOARD DATE:	  25 June 2014

		DOCKET NUMBER:  AR20130016854 


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 the removal from his records of a Relief for Cause Officer Evaluation Report (OER), for the rating period 5 December 2009 through 6 May 2010 (hereafter referred to as the contested OER).

2.  The applicant states:

	a.  The final OER he received was unjust and he would like it removed from his record.  As a member of the Virginia Army National Guard (VAARNG), he volunteered for deployment and deployed as an augmentee to the Vermont ARNG (VTARNG).  With no counseling or justification, the VTARNG wrote him a substandard OER and gave it to him just hours before his demobilization.  This had the effect of giving him no recourse to respond.  

	b.  Army regulations clearly state that if you are going to rate someone as "do not promote" you must have counseled them and shown that they failed to meet the standard.  He feels this OER was given to him out of spite by a battalion commander (CDR) who did not like having an "outsider" on his battalion staff.  He is retired now but he does not want this smear to be the last page in a record that goes back to 1988 and across several wars.

3.  The applicant provides no additional evidence.



CONSIDERATION OF EVIDENCE:

1.  The applicant was serving as a member of the VAARNG and he held the rank/grade of major (MAJ)/O-4.  He was mobilized as an individual augmentee in support of Operation Enduring Freedom and he entered active duty on 5 December 2009.

2.  On 2 February 2010, he deployed to Afghanistan and was assigned to the 3rd Battalion, 172nd Infantry, 86th Infantry Brigade Combat Team.

3.  On 18 June 2010, he received a General Officer Memorandum of Record (GOMOR) issued by Major General (MG) JC, CDR, Headquarters (HQ), Combined Joint Task Force (CJTF) 101, Bagram, Afghanistan.  The GOMOR stated, in part:

	a.  The applicant was being reprimanded for engaging in conduct of a nature to bring discredit upon the Armed Forces, in violation of Article 134, Uniform Code of Military Justice (UCMJ).  Between January and March 2010, he engaged in extensive email with a civilian female of college age named C____.  In the email, he spoke of his status as an active duty service member, he extolled the virtues and superiority of the white race, and expressed intolerance and hatred of other racial groups.  He gave C___ detailed advice on who to contact and what to do in order to get involved in white nationalist groups that shared their mutual interests.  He further expressed an interest in recruiting individuals predisposed to the same racial and ethnic bias.  He gave her specific guidance on whom to look for in order to expand her white nationalist social circle.

	b.  As a field grade officer, MG JC expected him to set the example by living the Army Values and exhibiting sound judgment and unquestionable integrity.  His efforts in recruiting a college-age civilian female to participate in and promote activities that advocate for the superiority of one race and intolerance of other races were contrary to Army Values and could bring the military service into disrepute.  His actions demonstrated a marked lack of character and poor judgment and he (MG JC) had serious doubts whether he (the applicant) had the moral and professional attributes for continued service.  MG JC further stated he was imposing the reprimand as an administrative measure and not as punishment under Article 15, UCMJ.  

4.  The GOMOR is currently filed in the performance folder of his Official Military Personnel File (OMPF).



5.  On 10 July 2010, the applicant was notified by MG JC that elimination proceedings had been initiated against him under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraphs 4-2b(3,5,8) and 4-2c(5) for misconduct, moral and professional dereliction, and derogatory information.

6.  On 13 July 2010, the applicant submitted a request for resignation in lieu of elimination proceedings on the condition he be discharged with a characterization of service no less favorable than general, under honorable conditions.

7.  In July or August 2010, the applicant received the contested OER, a relief for cause OER, which covered 5 months of rated time from 5 December 2009 through 6 May 2010 for his duties while serving as the Effects Coordinator in a 13A (Field Artillery) position.  His rater was the battalion CDR, Lieutenant Colonel (LTC) RC, and his senior rater was the brigade CDR, Colonel (COL) WR.  The OER shows the following entries:

	a.  In Part IVa (Performance Evaluation - Professionalism – Army Values), the rater placed an "X" in the "No" block for Honor and Respect values.

	b.  In Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Unsatisfactory Performance - Do Not Promote" block and entered comments in Part Vb as follows, in part:

[Applicant] at times displayed a fair level of proficiency.  However, he consistently delivered poor results and was unable to contribute to the battalion's mission in any substantial way.  Despite receiving extensive coaching…he demonstrated no ability to plan and execute fires on non-lethal effects.  Furthermore, he failed to grasp the gravity of his position and responsibility to the unit and Soldiers.  He struggled with managing a small staff section and routinely failed to provide meaningful guidance to his subordinates or enforce standards of performance.  Most alarming was his overt disdain for the civilian leadership and many of the Soldiers.  This unacceptable behavior was well documented in an extensive 15-6 investigation that was directed by the brigade CDR.  As a result he was removed from his position. 

	c.  In Part VIIa (Senior Rater), the Senior Rater placed an "X" in the "Do Not Promote" block and entered the following comments, in part:

[Applicant's] performance as a battalion effects coordinator was a disappointment.  He has repeatedly shown the inability to effectively plan, execute, and control lethal and non-lethal effects on the battlefield.  Most troubling however, has been his complete lack of respect for his chain of command, civilian leadership, and his fellow Soldiers.  As a result, he was relieved from his position, received a GOMOR, and has been referred for separation from the Army.  

8.  The contested OER was referred to the applicant for acknowledgement and opportunity to submit comments.  The OER indicates he did not provide any comments.  On 6 September 2010, the OER was signed by rating officials and the applicant (on 29 September 2010) and processed at the U.S. Army Human Resources Command (HRC).  The OER is currently filed in the performance folder of his OMPF.

9.  On 24 September 2010, the Deputy Assistant Secretary Army (DASA) Review Boards accepted his resignation in lieu of elimination and directed his discharge with a general, under honorable conditions discharge.  

10.  On 24 September 2010, HRC sent a message to the CDR, HQ, CJTF 101, Bagram, wherein it relayed the information of the acceptance of the applicant's resignation and that he would be discharged with the issuance of a General (Under Honorable Conditions) Discharge Certificate by reason of misconduct, moral or professional dereliction, and derogatory information.

11.  The applicant departed Afghanistan on 2 October 2010.  On 5 November 2010, he was honorably released from active duty to the control of the VAARNG.  

12.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows he was released by reason of completion of required active service with an honorable characterization of service. 

13.  On 1 January 2011, he was honorably separated from the ARNG and transferred to the Retired Reserve.

14.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  

	a.  Army evaluation reports are independent assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, and counseling forms.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

	b.  The rated Soldier, officer or noncommissioned officer (NCO), plays a significant role in counseling sessions and the evaluation process throughout the rating period.

	c.  Evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  

	d.  When an OER is referred to a Soldier, the rated Soldier may comment if they believe that the rating or remarks are incorrect.  The comments will be factual, concise, and limited to matters directly related to the evaluation on the OER; rating officials may not rebut rated Soldier’s referral comments.

	e.  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 the presumption of regularity will not be applied to the report under consideration, and 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 with regard to those assertions. 

15.  Army Regulation 600-8-104 (Army Military Human Resource Record (AMHRR)) governs the composition of the OMPF and states the performance folder is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Appendix B-1 states an OER is filed in the performance folder of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested OER should be removed from his records.

2.  The evidence of record shows the applicant received a referred Relief for Cause OER that stated his performance was poor, he did not contribute to the mission in any substantial way, he failed to grasp the gravity of his position, displayed a disdain for the civilian leadership and Soldiers, and failed in his assigned duties.  The focus of the OER was on the quality of his work and his unacceptable behavior.  Accordingly, the OER was referred to him.

3.  One of the steps in the redress system is the referral process including a Soldier’s opportunity to comment on the referred OER.  The record reflects he declined to comment on the referred OER.  Additionally, there is no evidence in the record that he requested a commander’s inquiry as provided in Chapter 6 of Army Regulation 623-3.  The report was signed by him on 29 September 2010, and he did not depart Afghanistan until 2 October 2010.

4.  The contested OER appears to be correct.  There is no evidence, and the applicant has not provided any evidence, to show that his rater and senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  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.  

5.  The applicant’s arguments provided in this case address his dissatisfaction with his rating.  However, he failed to show any material error, inaccuracy, or injustice related to the report at the time it was rendered.  

6.  In view of the foregoing, he is not entitled to the requested relief.

7.  In addition, it is noted that when the applicant's resignation was accepted the DASA directed he receive a general, under honorable conditions discharge vice the honorable one he received.  However, it is the practice of this Board to not disadvantage an applicant by making the situation any worse off for having applied for a correction to their record; therefore, no action will be taken to correct his DD Form 214.

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)                                         AR20130016854



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ABCMR Record of Proceedings (cont)                                         AR20130016854



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