IN THE CASE OF:  

		BOARD DATE: 14 January 2014

		DOCKET NUMBER:  AR20130018498 


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 the Report of Investigation (ROI) which served as the basis of a referred Officer Evaluation Report (OER) from his Army Military Human Resource Record (AMHRR).  He also requests removal of the referred OER from his AMHRR.  He requests a personal appearance before the Board.

2.  The applicant states:

	a.  The ROI is unjust because it contains unfounded derogatory information and did not include his rebuttal.  

	b.  The derogatory comments contained in the OER were proven to be unfounded by a Board of Inquiry (BOI).

3.  The applicant provides copies of:

	a.  DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Inquiry) dated 2 April 2013 with Summary of Proceedings, Officer Elimination Board. 

	b.  March 2013 OER appeal.

	c.  August 2013 OER appeal with Officer Special Review Board (OSRB) Record of Proceedings (ROP) for Docket Number AR 20130009913, dated 
25 July 2013.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

The applicant listed a counsel by name, but that counsel submitted nothing.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army (RA) Adjutant General Corps lieutenant colonel (LTC)/O-5.  

2.  On 10 January 2012, The Adjutant General appointed an investigating officer (IO) under the provisions of Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) to conduct an informal investigation into the allegations that the applicant wrongfully directed a DA civilian employee to improperly administer his Army Physical Fitness Test (APFT) and made a false entry into the Medical Protection System (MEDPROS).

3.  On 27 January 2012, the IO completed the investigation and stated, "In conclusion, the greater weight of evidence supports my findings that LTC K____ did intend to falsify official Army documents, did make a false entry into the Army MEDPROS system, and that he did direct his subordinates to unknowingly falsify official Army documents, did provide them with invalid/false data with which to complete said documents, and did use unlawful command influence to accomplish all the above, as follows: 

	(a)  Integrity Violations:

* Entering false data into his personal MEDPROS record, altering this official Army database of record on 28 February 2011
* Providing invalid height/weight/body fat data to Chief Warrant Officer (CW3) B____ and Mr. K____ for the 2 June 2011 APFT scorecard
* Providing invalid height/weight/body fat data to Mr. T____ in order to fabricate a DA Form 5500 (Body Fat Content Worksheet) o/a 29 July 2011
* Directing Mr. T____ and Master Sergeant (MSG) B____ to fabricate a  fraudulent DA Form 5500 o/a 29 July 2011 
* providing invalid height/weight data for DA Form 5500 to MSG B____  on 1 August 2011
* Falsification of 11 June 2011 OER, neither APFT nor height/weight       data are valid for the 2 June 2011 record APFT
* Confirming invalid APFT and height/weight data for Officer Record       Brief (ORB), dated 31 March 2011, for the FY11 Senior Service            College Board on 4 February 2011

	(b)  Procedural Violations:

* Requiring DA Civilians, who's [sic] PDs [Position Descriptions] do not include conducting/supporting APFTs as part of their routine duties, to do so
* Requiring a DA Civilian to perform an APFT alone
* Directing completion of an invalid 2 June 2011 APFT card, as               Height/Weight/Body Fat measurements are to be conducted in             conjunction with record APFTs

4.  In his March 2012 rebuttal memorandum to the AR 15-6 investigation the applicant acknowledged that he exercised poor judgment in terms of failing to make himself an expert in the technical requirements associated with Mr. Ozel K____'s participation in both the APFT and MEDPROS issues associated with the investigation.  While he acknowledged his responsibility for those shortcomings, he disputed the allegations and findings related to his integrity. 

5.  On 12 March 2012, The Adjutant General issued a memorandum for record in which he indicated he had reviewed the investigation as well as the applicant's rebuttal matters.  The Adjutant General approved the IO's findings. 

6.  He received a relief-for-cause OER (hereafter referred to as the contested OER) for his performance of duty as the Commander of a Joint Military Postal Activity (JMPA).  This report covered 9 rated months between 12 June 2011 and 
19 March 2012.  His rater was the Deputy Director, a GS-15, and his senior rater (SR) was the Executive Director, a colonel.  The contested OER shows his rater and SR signed the report on 28 March 2012 and 15 May 2012, respectively.  It also shows the following entries:

	a.  In part IV (Performance Evaluation – Professionalism (Character)) the following entries are noted in:

* part IVa (Army Values) the rater placed an "X" in the "No" block for "Courage," "Selfless-Service," and "Duty"
* part IVb (Leader Attributes/Skills/Actions), subsection b.1 (Attributes), the rater placed an "X" in the "No" block for "Mental and "Physical."  In Subsection b.2 (Skills – (Competence)), the rater placed an "X" in the "No" block for "Conceptual"
* part IVb, subsection b.3 (Actions (Leadership) – Influencing), the rater placed an "X" in the "No" block for "Decision-Making" and in (Improving) the rater placed an "X" in the “No” block for "Building"

	b.  In part V (Performance and Potential Evaluation (Rater)) the rater placed an "X" in the "Unsatisfactory Performance – Do Not Promote" block and entered the following remarks in Part V:

		(1)  In part Vb the rater entered in part:  "LTC K____(the applicant) was relieved from command of the JMPA-PAC on 19 March 2012 for wrongfully directing subordinate personnel to improperly administer and document his official Army Physical Fitness Test and height/weight data.  These events demonstrate poor judgment and a failure to execute Command duties and responsibilities in accordance with regulatory requirements.

		(2)  In part Vc the rater entered:  "Officer does not demonstrate potential for promotion."

	c.  In part VII (SR), the SR placed an "X" in the "Do Not Promote" block.  Part b shows "Below Center of Mass Retain."  The SR entered in part the following remarks in part VIIc:  "I directed the relief for cause from Command when LTC K____ wrongfully directed subordinate staff members to improperly administer and document his APFT, height and weight information. His actions caused me to lose faith and confidence in his ability to make sound decisions and lead his unit.  Do not promote or select for future Army schooling.  Rated officer did not comply with suspense to provide a signed copy of his evaluation; therefore it is processed without signature."

7.  On 11 February 2013, the applicant was referred to a Board of Inquiry (BOI) to determine whether he should be retained in the Army.  The BOI convened on 
2 April 2013 and adjourned on 3 April 2013.

	a.  In his testimony before the BOI, Mr. Ozel K____ states, in part, that:

		(1)  "In February 2011…I was given access to the MEDPROS system.  I was asked to update (applicant's) records.  He handed me some medical records to enter into MEDPROS….  He helped me get to the screens needed to enter the updates.  I entered the weight listed on the paperwork he gave me into the system; I showed him what I entered.  He made a statement that I should take weight off for clothes.  He said this to a passerby in our open office area.  Then he leaned in and changed the weight himself to 5 pounds lighter.  I didn't know what to do at that point other than to make a note of it, so I wrote a memorandum of what had transpired.  I told my supervisor, CW3 B____, what happened, but I didn't show him the memorandum."

		(2)  "On 2 June 2011, (applicant) took a PT test.  I was told to meet him at about 0600 at the gym to administer the PT test to him.  We met up and went to the aerobics room for the pushups and sit ups.  It was just me giving him the test." 

	b.  In his testimony before the BOI the applicant acknowledges he entered weight data into MEDPROS and that Mr. Ozel K____ gave him the PT test.  He did not deny either incident occurred.  He further acknowledged that he exercised poor judgment with the APFT and he should have exercised better judgment in "my past decisions."   

	c.  The BOI found by a preponderance of the evidence that the allegations the applicant engaged in conduct unbecoming an officer in reference to substantiated derogatory information resulting in a referred OER for the period 12 June 2011 - 19 March 2012, which was filed in his Official Military Personnel File was not supported.  

	d.  The board recommended that applicant be retained in the Army.

	e.  In a 23 April 2013 memorandum the Commanding General, 1st Sustainment Command (Theater), Camp Arifjan, Kuwait, notified the applicant that as the BOI had recommended he be retained on active duty and not reassigned, the case was closed. 

8.  On 12 March 2013, the U.S. Army Human Resources Command (AHRC) Appeals and Corrections Section returned the applicant's OER appeal without action.  The memorandum states, "The evidence you have submitted does not support your claim and support the statement on the report.  If you do not agree with the results of the AR 15-6 investigation you can appeal those results thru the investigating officer.  In addition if you would like to add comments to the report you can send them to this office and we will attach them to the report." 

9.  He re-submitted his appeal of the contested OER.  On 25 July 2013, the OSRB considered his appeal.  The OSRB ROP shows in item 2a of the Analyst's Discussion and Recommendations: "Contrary to his contention that the BOI, after scrutinizing the AR 15-6 investigation, absolved him of the incidents underlying the OER's derogatory information, the AR 15-6 is replete with evidence to show the appellant committed the misconduct leading to his relief for cause; to include his own self-admissions, and the corroboration by a least four individuals.  As noted in Army Regulation 600-8-24, a BOI is limited to making a determination on whether to retain (with or without reassignment) an officer on active duty or to eliminate an officer."

10.  The contested report is filed in the performance section of his AMHRR, and the DA Form 1574 with the BOI proceedings is filed in the restricted section of his AMHRR.

11.  AR 600-8-24 (Officer Transfers and Discharges) describes policies and procedures governing the transfer and discharge of Army officer personnel. Paragraph 4-6a states that the BOI’s purpose is to give the officer a fair and impartial hearing determining if the officer will be retained in the Army. 

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

	a.  Paragraph 1-9 states Army evaluation reports are 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, 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, DA selection boards, and career managers can make intelligent decisions.

	c.  Paragraph 3-23 states that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to Headquarters, Department of the Army (HQDA).  Any verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's use of verified derogatory information.

	d.  Paragraph 3-36e stipulates that when the rated officer is unavailable to sign an evaluation report for any reason and the report must be referred, it will be referred in writing to the rated officer.  The rated officer will be given a reasonable suspense to respond.

	e.  Paragraph 6-7 states an evaluation report accepted by HQDA and included in the official record of an officer is presumed to:

		(1)  be administratively correct,

		(2)  have been prepared by the properly designated rating officials, and

		(3)  represent the considered opinions and objective judgment of the rating officials at the time of preparation.

	f.  Paragraph 6-11 provides guidance on 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 referred to in paragraph 6-7 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.

13.  AR 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  This regulation states the Army policy is to ensure that unsubstantiated unfavorable information is not placed in personnel files or used for personnel decisions.  Additional objectives are to protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility and to provide a means to remedy injustices if they occur.  Paragraph 3-2 states that except as indicated in paragraph 3-3, unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement or to decline, in writing, to make such a statement.  This statement may include evidence that rebuts, explains, or mitigates the unfavorable information.  The issuing authority should fully affirm and document unfavorable information to be considered for inclusion in official personnel files.

14.  AR 600-8-104 (AMHRR Management) governs the composition of the AMHRR and states that the performance section is used for filing performance, commendatory, and disciplinary data.  A document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include the ABCMR.  Appendix B (Documents Authorized for Filing in the AMHRR and/or interactive Personnel Electronic Records Management System (iPERMS), Table B-1 (Authorized Documents) states the DA Form 67-9 (Officer Evaluation Report) is to be filed in the performance section and DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers is to be filed in the restricted section of the AMHRR.

15.  AR 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the ROI did not include his rebuttal.  The ROI and the contested OER are unjust because they contain unfounded derogatory information.  The derogatory comments contained in the OER were proven to be unfounded by a BOI.

2.  The applicant acknowledged he exercised poor judgment with the PT test and that he should have exercised better judgment "in my past decisions."  He did not deny that either the weight data entry in MEDPROS or the APFT incident occurred.

3.  The evidence of record shows the applicant's appeal of the contested OER was denied.  The contested ROI, contested OER, and BOI are all properly filed in his AMHRR.  

4.  By regulation, to support removal, transfer, 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.  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, other than his dissatisfaction, the applicant did not show, by clear and convincing evidence, that the contested OER contains a material error, inaccuracy, or injustice, or that his OER should be removed.  Therefore, he is not entitled to the requested relief.  His rebuttal evidence has consisted almost entirely of character witness statements.

6.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant/counsel is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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)                                         AR20090007349



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ABCMR Record of Proceedings (cont)                                         AR20130018498



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