BOARD DATE:	  10 July 2014

		DOCKET NUMBER:  AR20130018441

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 transfer of his DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 8 February 2008 through 31 July 2008 from the performance folder of his Official Military Personnel File (OMPF) to the restricted folder.  Hereafter, the OER in question is referred to as the contested OER.

2.  The applicant states the contested OER presents an inaccurate and unjust perception of his performance and the presence of this single OER in his OMPF has had a disproportionate and unjust effect on the promotion board when considering his potential for positions of greater responsibility.  He further states:

* the contested OER was intended as a counseling tool by his senior rater, who intended the OER to be an azimuth check, not a career changing evaluation
* the contested OER was not a relief-for-cause OER or a "below center of mass" evaluation; it was only referred due to a single negative comment by his senior rater and was intended as a counseling tool
* his senior rater for the contested OER endorses its transfer to the restricted folder of his OMPF
* his senior rater concurs that the evaluation contained in the contested OER does not accurately portray his performance and potential as an Army officer
* the contested OER shows no correlation to any of his other evaluations or his performance throughout the rest of his career
* the presence of this single OER could end his Army career despite outstanding performance since the evaluation was written

3.  The applicant provides:

* a self-authored memorandum for the President, Department of the Army Suitability Evaluation Board (DASEB), dated 21 September 2013
* the contested OER, with attached comments
* a memorandum of support from the officer who served as his senior rater on the contested OER, dated 7 August 2013
* his OER's covering the following periods –

* 1 August 2008 through 1 September 2011
* 2 September 2011 through 25 July 2012
* 26 July 2012 through 28 February 2013
* 1 March 2013 through 19 September 2013

CONSIDERATION OF EVIDENCE:

1.  On 5 January 1998, the applicant enlisted in the Regular Army.  He attended and completed the U.S. Military Academy Preparatory School and the Defense Language Institute Russian Basic Language Course.  On 28 June 2000, he was honorably released from active duty in the rank/grade of specialist/E-4 to enter the U.S. Military Academy (USMA) at West Point, NY.

2.  On 29 May 2004 after completing his collegiate studies at USMA, he was appointed as a Reserve commissioned officer of the Army in the rank/grade of second lieutenant/O-1 in the Armor Branch.  Later, upon completion of his training as a special forces officer, he transferred to the Special Forces Branch.

3.  He served in numerous positions of increasing responsibility in the Regular Army.  On 29 November 2005, he was promoted to the rank/grade of first lieutenant/O-2, and he was promoted to the rank/grade of captain (CPT)/O-3 on 1 July 2007.

4.  On 24 October 2008, he received the contested OER, a permanent change of station report in which he was rated as an Iraqi Security Forces Coordinator for Headquarters Troop, 1st Battalion, 32d Cavalry Regiment, 101st Airborne Division, at Forward Operating Base Paliwoda in Iraq.  This report covered 6 months of rated time during the period 8 February 2008 through 31 July 2008.

	a.  In Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater provided the following narrative statement:

CPT [Applicant] performed in a satisfactory manner during this rating period.  During Operation Iraqi Freedom (OIF) 07-09, CPT [Applicant] was hand selected by the Squadron Commander to serve as the Squadron Iraqi Security Force Coordinator and also managed the Squadron's Sons of Iraq program.  CPT [Applicant] was instrumental in the development of key mechanisms that allowed the 3-14-4 IA [Iraqi Army] and 2-6-2 National Police Battalion to increase their combat efficiency and improved security conditions in the Balad Qadah.

	b.  In Part Vc (Comment on Potential for Promotion), the rater stated:

CPT [Applicant] has the potential for increased responsibility and following further professional development at his current grade, should be promoted with peers.

	c.  In Part VIIc (Comment on Performance/Potential), the senior rater stated:

CPT [Applicant] performed satisfactorily as the Iraqi Security Force Coordinator during OIF 07-09.  CPT [Applicant] worked to develop our partnership program with the 3-14-4 Iraqi Army Battalion, the 
2-6-2 National Police Battalion and more than 1300 Sons of Iraq security contractors.  CPT [Applicant's] decision, by his own admission, to "befriend" and "mentor" a female Humint [HUMINT – Human Intelligence] Support Team Soldier in the grade of Specialist does cause me to seriously question his judgment.  Send to the MCCC [Maneuver Captains Career Course], and if no further lapses in judgment are evident, carefully consider placing in command of Soldiers and promotion to Major (MAJ).

5.  The contested OER was referred to the applicant for an opportunity to comment.  The OER indicates the applicant elected to make comments which were attached to the contested OER as an enclosure, dated 7 October 2008.  In his attached comments, he stated:

The purpose of this memorandum is to concur with my senior rater's comments, and face the error I made.  Despite my intentions, I allowed myself to get into a situation where my motives and judgment could be questioned.  I have learned the importance of boundaries between officers and enlisted Soldiers in order to maintain a professional environment.  I showed poor judgment by not maintaining those boundaries.

This valuable lesson learned now will help me to be a better leader and commander.  I will use this experience to help teach and mentor young officers to avoid similar situations.  In the future, I will make sound judgments and avoid associations that might create an unprofessional environment.

7.  On 14 November 2008, the contested OER was filed in the performance folder of his OMPF.

8.  His OMPF is void of documentation that shows he petitioned the Officer Special Review Board (OSRB) through the U.S. Army Human Resources Command (HRC) for transfer of the contested OER to his restricted folder.

9.  He provided a memorandum of support from his senior rater for the contested OER who stated:

* the applicant's record, other than the contested OER, demonstrates consistent, exemplary duty performance throughout his career as an Army officer
* the contested OER was intended as a counseling tool – to provide the applicant with a hard azimuth check and ensure he understood that actions have consequences
* the contested OER was not meant to be referenced as a stand-alone event to determine the applicant's potential to serve in positions of greater responsibility
* his intent was for the applicant's gaining unit to carefully assess his potential as he continued to develop professionally – the applicant earned the respect and confidence of his gaining unit commanders
* although the applicant has excelled in his performance of duty since receiving the contested OER, the results of the last MAJ selection board seem to indicate he was not selected for promotion to MAJ because the referred OER was present in the performance folder of his OMPF
* given the applicant's performance and potential, as assessed by all of his raters and senior raters since 2008, the contested OER does not reflect what the applicant has become and, more importantly, the clear future potential he has for service in the Army

10.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) establishes the responsibilities, policies, and procedures for maintaining and controlling the OMPF.  It states that once a document is placed in the OMPF, 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 proper authorities listed in the regulation.

11.  Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted file on the basis of proof that their intended purpose has been served.

12.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System – which includes the DA Form 67-9.  It also provides guidance regarding redress programs, including commander's inquiries and appeals.

	a.  Paragraph 1-9 states Army evaluation reports are assessments of 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, counseling forms, and as explained in other directives.  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.  Paragraph 3-2 defines the role of the rating officials.  Rating officials have the responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest, fair evaluations of the Soldiers under their supervision.  On one hand, they must give full credit to the rated individual for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, Department of the Army selection boards, and career managers can make intelligent decisions.

	c.  Paragraph 6-11 provides guidance for the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It states the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration 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, not merely proof of the possibility of administrative error or factual inaccuracy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested OER should be transferred to the restricted folder of his OMPF because it presents an inaccurate and unjust perception of his performance, and the presence of this single OER in his OMPF has had a disproportionate and unjust effect on the promotion board when considering his potential for positions of greater responsibility.

2.  The evidence of record shows he received the contested OER after he exhibited questionable judgment in the manner in which he conducted himself, vis-à-vis his relationship with a female enlisted Soldier.  He has not denied his engagement in the inappropriate relationship; however, he states he has learned from the experience and it has made him a better officer.

3.  He now asks the Board to rule that the evaluation has served its intended purpose as a developmental tool and it should be transferred to the restricted folder of his OMPF because its continued presence presents an unjust and inaccurate portrayal of the officer he has become.

4.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

5.  The quality of service of a Soldier is affected by conduct that is of a nature to bring discredit on the Army or that is prejudicial to good order and discipline.  There is generally a reluctance to remove adverse information from an OMPF when it places the applicant on par with others with no blemishes for promotions, assignments, and other favorable actions.  When the determination is made to remove unfavorable information, it is done so only when there is clear and convincing evidence the information is untrue or unjust.

6.  In this case, there is no evidence that shows the contested OER is unjust, in whole or in part, untrue, contains a material error, or is inappropriately filed in his OMPF.  To the contrary, the contested OER is an accurate depiction of the applicant's performance during the rating period.  Further, OERs are not authorized documents for appeal based on intended purpose served.  Accordingly, there is an insufficient basis to grant 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 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)                                         AR20100015589



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ABCMR Record of Proceedings (cont)                                         AR20130018441



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