IN THE CASE OF:	 

		BOARD DATE:	  5 December 2013

		DOCKET NUMBER:  AR20130017861 


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 an Officer Evaluation Report (OER) (hereafter referred to as the contested OER) for the period ending 20070720 
(20 July 2007).  

2.  He states the memorandum from his senior rater (SR) shows it was not the SR's purpose or intent to end his (applicant's) career which is why a "Show Cause" board was not initiated.  For this reason, his SR has stated that this corresponds with what is intended under the provisions of "AR 600-37a [injustice]" (Army Regulation 600-37 (Unfavorable Information) and the contested OER should be removed.  

3.  The applicant also states that based on the Army's system for rehabilitation, this instance does not show favor in showing that the rehabilitative process does work.  It is an injustice in that the only blemish in his entire personnel file is the contested OER which is the reason for his non-selection to the rank of major (MAJ)/O-4.

4.  He adds he has made every effort possible to reestablish himself as a viable, credible leader in the U.S. Army.  His initial mistake was a learning experience that has made him a better person.  He has served in the Army for over 15 years and would like to continue to do so.  He has never stopped leading and "Soldiering."  The removal of the contested OER is the only way for him to continue to actively serve.  

5.  The applicant provides a memorandum with an enclosure from his SR and a copy of the contested OER. 

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.  His records contain a Serious Incident Report (SIR), Military Police Report, and a Statement of Suspect/Witness/Complaint form which show that on 6 July 2007 the applicant was cited by the German Police for driving while intoxicated during a routine traffic stop.  He was advised of his rights in accordance with Article 31 of the Uniform Code of Military Justice (UCMJ) which he acknowledged and invoked requesting legal counsel.

3.  He completed Remedial Driver Training on 1 August 2007 and attended a 
12-hour "Prime for Life" seminar on 7 and 8 August 2007.

4.  On 20 August 2007, the applicant was issued a General Officer Memorandum of Reprimand (GOMOR) for driving under the influence (DUI).  This memorandum stated:

	a.  It was illegal to operate a motor vehicle on the public roadways with a Breath Alcohol Content (BraC) of .05g/210L or higher.  His BraC was shown to be .0735g/210L and .0567g/210L respectively, and exceeded that standard.  

	b.  He failed to maintain the high professional standards of a commissioned officer and furthermore committed this misconduct while serving as a company commander.  

	c.  The GOMOR was imposed as an administrative measure and not punishment under Article 15, UCMJ.  The applicant was given 14 calendar days to submit a statement or rebuttal.  

5.  On 29 August 2007, the applicant submitted a rebuttal to the GOMOR.  He indicated he was taking total responsibility for his actions which led to him being relieved of his command.  He also stated, in part, his performance and his entire career have been exemplary and he had always chosen the hard right over the easy wrong.  He expressed his sincere regret and stated he believed he was worth a second chance.  He asked that the GOMOR not be placed in his Official Military Personnel File (currently known as the Army Military Human Resource Record (AMHRR)).  

6.  Both his battalion and brigade commanders and the Deputy Commanding General for Operations, U.S. Army Space and Missile Defense Command recommended the GOMOR be filed in his AMHRR.  Accordingly, on 
10 September 2007, the Commanding General directed the GOMOR be filed in his AMHRR.  On 18 September 2007, the applicant acknowledged that he read and understood the filing determination made by the Commanding General.  

7.  The applicant also received the contested OER, which was a Relief for Cause report for the DUI incident.  This report contains the following entries:

	a.  Block I (Period Covered) - 20070606 thru 20070720.

	b.  Block J (Rated Months) - 2.

	c.  Part II (Authentication) - The rater, SR and the applicant all signed the report.  The contested OER was a referred report and there were no comments attached. 

	d.  Part IIIa (Principal Duty Title) - Company Commander.

	e.  Part IVa.7 (Duty) - No.

	f.  Part IVb.3.2 (Decision Making) - No.

	g.  Part Va (Performance and Potential Evaluation) - An "x" was placed in "Unsatisfactory Performance, Do Not Promote" block.

	h.  Part Vb (Rater's Comment on Performance) - "CPT R's actions have caused me to lose trust and confidence in his ability to command.  ADR violated the Army Value of Duty and the Leader Attribute of Decision Making by participating in actions resulting in his apprehension by local and military authorities." 

	i.  Part Vc (Rater's Comment on Potential for Promotion) - "With continued evaluation of this officer's performance he should be considered for promotion at the appropriate timeframes."

	j.  Part VIIa (SR-Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) - An "x" was placed in the "Do Not Promote" block.

	k.  Part VIIc (SR's Comment on Performance/Potential) -"I have relieved CPT R for cause as Commander of …, under the provisions of paragraph 2-17, Army Regulation 600-20 (Army Command Policy).  His poor judgment while in an off duty status caused me to lose trust and confidence in his ability to provide the example of leadership I require for the Soldiers in his command."

8.  His record shows he applied to the Department of the Army Suitability Evaluation Board (DASEB) to transfer the GOMOR to the restricted portion of his AMHRR.  The DASEB approved his request for transfer of the GOMOR in April 2009.  

9.  He submitted a request to this Board to transfer the contested OER to the restricted folder of his AMHRR; however, on 29 March 2012, the ABCMR denied the applicant's request to transfer the contested report and concluded the applicant failed to provide any evidence indicating material error, inaccuracy, or injustice with the contested report. 

10.  The applicant retired in the grade of captain (CPT)/O-3 on 30 September 2013 under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 6 (Voluntary Early Retirement) and Army Directive 2013-14 (Temporary Early Retirement Authority).

11.  The SR of the contested OER, who is now a brigadier general, provides a memorandum, dated 12 February 2013, for clarification of his intent for the contested report.  

	a.  He indicates the contested OER was required due to relief for cause procedures and was intended to provide sharp correction which would enable the applicant to enter a rehabilitative process.  It was not his purpose or intent to end the applicant's military career which is why he did not initiate a show cause board.  He documented the infraction with the understanding of its severity and with the hope of teaching a meaningful lesson.

	b.  Based on the applicant's evaluations since the "Referred OER," he believes that this case corresponds with what is intended under Army Regulation 600-37 "(injustice)."  The "Referred OER" served its intended purpose, causing the applicant not to be promoted with his peers, as well as not qualifying for favorable assignments.  Further punishment as this point serves not only as an injustice to the officer but to the Army as a whole.  

	c.  The applicant has proven to him and all those he works with and for that he has matured because of the incident and has regained his (the SR's) trust and confidence.  The contested OER should be removed and the applicant should be retained in the Army and promoted to MAJ, effective now. 

12.  A review of his AMHRR in the Interactive Personnel Electronic Records Management System (iPERMS) shows the contested report is filed in the performance portion of his AMHRR.  

13.  His records also contain various other OERs.  The two OERs which were rendered prior to the contested report show him serving in the company commander position.  The OER for the period 20060606 through 20070605 was rendered by the same rating officials as the contested report and shows he was rated in the "Outstanding Performance, Must Promote" and "Best Qualified" categories.  The SR indicated the applicant was in the top 3 of 14 CPTs he senior rated.  The OER also shows in Part VII, "CPT R has unlimited potential.  Groom for battalion command.  Select below the zone to MAJ and make him a tactical signal battalion S3 or XO."  All OERs subsequent to the contested report rate him as a top performer with unlimited potential. 

14.  Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted by Headquarters, Department of the Army (HQDA) and included in the official record of a rated Soldier is presumed to be administratively correct; has been prepared by the properly designated rating officials; and represents the considered opinions and objective judgment of the rating officials at the time of preparation.  

      a.  Requests that an evaluation report in a Soldier’s AMHRR be altered, withdrawn, or replaced with another report will not be honored.  The regulation also states that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that clearly and convincingly establishes 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.

      b.  Paragraph 3-58 states a relief-for-cause OER report is required when an officer is relieved for cause regardless of the rating period involved.  Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty.  In that regard, duty performance consists of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards shown in the DA Form 67-9, Part IV.  Those standards would apply to conduct both on and off duty.

15.  Department of the Army Pamphlet 623-3 prescribes the policy and tasks for the Army's Evaluation Reporting System.  

      a.  Paragraph 2-13 contains the instructions that apply to completing a "Relief for Cause: OER.  The potential evaluation in Part V, block a, must reflect "Do Not Promote" or "Other."  The "Do Not Promote" recommendation is consistent with relief action and does not need further explanation.  The report will identify the rating official who directed the relief.  This official will clearly explain the reason for relief in his/her narrative portion of the DA Form 67-9.

     b.  Paragraph 2-14 states reviewers of the "Relief for Cause" OERs will ensure that the narrative portions of the OER contain factual information that fully explains and justifies the reason for the relief.  Reviewers will verify that any derogatory information has been accurately reflected.

16.  Army Regulation 600-37 prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  

      a.  This regulation states once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Although any Soldier may appeal the inclusion of a document placed in his or her file under this regulation, this does not include documents that have their own regulatory appeal authority such as evaluation reports

      b.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.

17.  Army Regulation 600-8-104 (Army Military Human Resource Records) provides policies, operating tasks, and steps governing the AMHRR.  Depending on the purpose, documents will be filed in the AMHRR in one of six folders:  performance, service, restricted, medical, other, or State/Territory.  

     a.  Table B-1 (Authorized Documents) states the DA Form 67-9 will be filed in the performance section of the AMHRR.
     b.  The "Performance" folder maintains performance related information to include evaluations, commendatory documents, and specific disciplinary information and training/education documents.  The primary purpose of this folder is to provide necessary information to officials and selection boards tasked with assessing Soldiers for promotion, special programs, or tours of duty.  This folder populates various board related applications (for example, Army Selection Board System).

18.  The Army Soldier Records Branch (ASRB), U.S. Army Human Resources Command (HRC) maintains iPERMS and the AMHRR.  A list of "Documents Required for Filing in iPERMS" is posted on their website.  The DA Form 67-9 is required to be filed in the performance folder of the AMHRR.  There are no exceptions to this requirement except in cases of a misfiled document.

DISCUSSION AND CONCLUSIONS:

1.  In July 2007, the applicant was cited by German authorities as having a BraC of 0.35, which when properly converted, equals a BAC of 0.7.  As a result, he received a GOMOR for the DUI offense and was relieved of his duties as a company commander.  The DASEB found that the GOMOR had served its intent and purpose and chose to transfer it to the restricted folder of his AMHRR.

2.  On 28 August 2007, the applicant received a relief-for-cause OER for the period covering the reprimand.  He was assessed as "Unsatisfactory Performance, Do Not Promote" and "Do Not Promote" by his rating officials.

3.  His records show he was rated highly on all other OERs subsequent to the DUI offense.  Although the SR rater now states in a memorandum that his intent was not to end the applicant's military career but to provide sharp correction which would enable the applicant to enter the rehabilitation process, the contested OER depicts a very different picture.

4.  Although the Relief for Cause report is required when a Soldier is relieved of his or her official duties and certain comments are required by regulation, the rating officials have the option of choosing verbiage which might not end a Soldier's career.  If the SR's intent was only to provide sharp correction and ensure the applicant received rehabilitative treatment, he could have entered comments which stated this.  

5.  The GOMOR is the appropriate tool to use as an administrative measure to provide “sharp correction.”  That is why, once the member has learned “a meaningful lesson,” a GOMOR may be transferred to the restricted file based upon intent served.  
6.  However, an OER is a historical record of the member’s duty performance.  It is not meant to be used as a corrective measure and therefore is not subject to the provisions of Army Regulation 600-37 that allow for the transfer to the restricted file based upon intent served.

7.  Further, an OER (or a GOMOR) may only be removed from the record when the OER there is compelling evidence that it incorrect, inaccurate, or unjust.  It appears the evaluation contained in the contested OER represents the considered opinions and objective judgment of the rating officials at the time of its preparation.  As a result, the contested OER was processed and accepted for filing in his AMHRR and is currently filed in the required folder (performance).

8.  Notwithstanding the applicant's acceptance of responsibility for his actions and support of his former SR, there is no substantive evidence of record and he has provided none to show the contested report is incorrect, inaccurate, or unjust.  As a result, there are no justifications to remove the contested OER from his AMHRR.

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)                                         AR20130017861





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ABCMR Record of Proceedings (cont)                                         AR20130017861



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