IN THE CASE OF:	  

		BOARD DATE:	  5 February 2014

		DOCKET NUMBER:  AR20130019267 


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 reconsideration of the Board's denial of his previous request for removal of an Officer Evaluation Report (OER) covering the rating period 2 February 2009 through 5 August 2009 from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).  

2.  The applicant states in a five-page self-authored statement that the evidence he presented with his appeal to the Officer Special Review Board (OSRB) clearly and convincingly established substantive inaccuracy, not just the possibility of inaccuracy.

	a.  In essence, he reiterates his previous statement to the Board (initial petition) by citing his disagreements with the OSRB decision and the bases given for the OSRB decision.  He states that judged in the context he provided, it is clear that sufficient evidence was presented to find substantive inaccuracy.  Therefore, the rater's comment amounts to nothing more than unverified, unproven derogatory information, which is specifically prohibited under Army Regulation 623-3 (Evaluation Rating System).

	b.  He states that he includes in this petition new evidence in the form of an email conversation indicating that his commander and the Investigating Officer (IO) were aware that the social security number (SSN) on a urinalysis was not his own.  He states the attached evidence demonstrates he had been cleared by his battalion commander and unit physician assistant (PA) regarding the single accusation the Army Regulation 15-6 investigation supported.
	c.  He states the injustice of having this inaccurate OER in his AMHRR is shown by the effect it has on his career prospects.  He has already been passed over for promotion once although every evaluation prior to, as well as those which followed, have been either "Center of Mass" or "Above Center of Mass."  He also notes that his most recent OER shows he identified and prevented a confirmed improvised rocket attack which targeted an ammunition supply point.

	d.  He states a proceeding concerning whether he would receive a General Officer Memorandum of Reprimand (GOMOR) for committing adultery found a lack of evidence to substantiate issuing a GOMOR.  The Army Regulation 15-6 investigation determined the charge of adultery was unfounded.  The evidence he provides demonstrates that four separate entities did not find evidence of any wrongdoing.  In spite of this, his rater placed comments in his OER claiming he admitted to an adulterous affair to him.  He states that aside from his own statement there is no evidence that can be provided to refute the statement his rater alleges he made to him in a one-on-one conversation.

	e.  He states that since he established substantive inaccuracy and demonstrated clear justification that regularity cannot be assumed by clear and convincing evidence, failure to grant his appeal constitutes error.  He requests reconsideration on that basis.

3.  The applicant provides a five-page self-authored statement with a list of enclosures in support of his application.
  
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130005353, on 15 August 2013.

2.  The applicant provides new evidence, which requires that the Board reconsider his request.

3.  Having had prior enlisted service, he was appointed as a Reserve warrant officer on 21 August 2007 in the rank and grade of warrant officer one.  He was promoted to chief warrant officer two on 21 August 2009.  He is currently serving on active duty.

4.  He was assigned to the 296th Brigade Support Battalion (BSB), 3rd Stryker Brigade Combat Team (SBCT), 2nd Infantry Division, in April 2008, as the Brigade Ammunition Warrant Officer.
5.  He provides a copy of a DD Form 2624 (Specimen Custody Document - Drug Testing), dated 29 October 2008.  The sheet does not contain his SSN.

6.  He provides email traffic from 19 November 2008 to 4 August 2009.

	a.  The email traffic shows that on 19 November 2008, Dr. RDH stated he was confused regarding the applicant in that the SSN for him in his medical record was the applicant's SSN and the applicant did not receive a prescription for amphetamines until the day after the urine test, thus there was no prescription prior to 28 October [2008] and to please recheck the records.

	b.  On 3 August 2009, Mr. MS stated that only the applicant from the 296th BSB produced an amphetamine positive.  The information was forwarded to the Command's Medical Review Officer (MRO).  On 18 November, the MRO advised that the electronic version of the applicant's medical record contained a prescription that might account for the positive - - except that it was dated the day after the positive sample was collected.  The author of the email stated that although he was unable to talk with the company commander, he spoke with Lieutenant Colonel (LTC) HHH (battalion commander) and he subsequently called back and indicated that the battalion's physician/PA had determined that the applicant did have a valid prescription.

	c.  On 3 August 2009, Mr. MS informed LTC HHH that Dr. RDH was the only designated MRO at Fort Lewis.  He indicated that no PA or physician who had not been formally trained and certified as an MRO was empowered to "clear" any positive, e.g., by concluding that the positive in this case was due to legitimate Army prescribed medical or dental procedure/prescription documented in the record as occurring prior to the 29 October 2008 positive.

7.  On 27 August 2009, an Investigating Officer (IO) completed an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation.  The appointing authority had directed the following:

* determine whether the applicant had a positive urinalysis without a proper prescription
* determine whether he took the proper steps to close out the 3rd SBCT's open documents for ammunition turn-in
* determine whether he forged his Enlisted Record Brief documentation to say he attended an ammunition course required to be accepted into Warrant Officer Candidate School (WOCS)
* determine whether he failed to attend mandatory training while deployed
* determine whether he committed adultery

8.  The IO found inconclusive evidence as to whether or not the applicant committed adultery by having a sexual relationship with another Soldier's wife.  This was due to conflicting sworn statements by officers in the unit regarding the applicant's marital status and relationship with the Soldier's wife.  Further, the applicant's wife stated he was having an affair with another Soldier's wife and then later recanted the statement.

9.  The IO stated he believed the applicant did not have a prescription before the 29 October urinalysis, and that he obtained the prescription the day after the urinalysis.  The IO came to that conclusion because as of that date the applicant had still not provided a valid prescription to Dr. RDH, the only person on Fort Lewis who could clear anyone of a positive urinalysis.  The applicant's wife originally claimed the applicant was taking her prescription medication along with SSG S's son's medication, but later recanted that statement.

10.  Upon completion of the investigation, the IO recommended:  

* that Uniform Code of Military Justice (UCMJ) action be taken against the applicant for the charge of not having a prescription for a controlled substance before the 29 October 2008 urinalysis
* no action be taken against the applicant on the charges of dereliction of duty, falsifying documentation to get into WOCS, failing to report, and adultery

11.   On 2 February 2010, the applicant received the contested OER.

	a.  In Part IV (Performance Evaluation - Professionalism), the rater placed an "X" in the "no" block for Integrity.

	b.  In Part Vb (Performance and Potential Evaluation - Rater), the rater placed an "X" in the block for "Unsatisfactory Performance, Do Not Promote."  In the block provided for his comments, the rater stated, in part, "[The applicant] has demonstrated a lack of integrity during this rating period that makes him incompatible with continued military service.  While serving on the Brigade Torch Party [the applicant] confessed to me that he had engaged in an extramarital affair with a woman he met at the National Training Center (NTC) who was also married.  Several days later when questioned by his Company Commander [the applicant] denied having an extramarital affair.  [The applicant] lied to one of the two officers and as such has demonstrated that he does not have the integrity required for service as a leader in the U.S. Army."   

	c.  In Part Vc (Comment on Potential for Promotion), the rater stated, "[The applicant] has no potential for promotion or continued service in the U.S. Army. His demonstrated lack of integrity is incompatible with military service and renders him incapable of leading soldiers with any credibility.  [The applicant] should be considered for termination from service."

	d.  In Part VIIa (Promotion Potential) the Senior Rater (SR) placed an "X" in the box for "Do Not Promote."  In the block provided for his comments, the SR stated, "[The applicant] is an officer of questionable moral character.  [The applicant] possesses solid technical acumen; however, his demonstrated lack of integrity and apathy renders him incapable of effectively serving as a member of this unit.  Specifically, [the applicant] misinformed senior commissioned officers and served as a point of friction and failure in the conduct of SPO level ammunition operations, where his inability to effectively manage ammunition in support of brigade level activities has resulted in inadequate support and losses of accountability.  This demonstrated lack of reliability and questionable integrity reflects poorly on our officer corps.  As such, there exists limited utility in the continued service of [the applicant].  Regrettably, I cannot in good conscience recommend this officer for promotion or retention in the Army.  Officer failed to submit a DA Form 67-9-1."

12.  On 10 April 2010, the applicant requested a Commander's Inquiry (CI) into the contested OER.  He stated his appeal was based on both substantive and administrative error.  He stated his SR and rater included statements in his OER referencing issues related to an open Army Regulation 15-6 investigation.  Specifically, his rater mentioned an extramarital affair in Part V of his OER which was the subject of the Army Regulation 15-6 investigation.  No conclusive evidence was found in support of the alleged affair.  He further stated the SR alleged there were several errors in forecasting required ammunition.  He stated the contested OER was the result of bias from his SR.

13.  On 14 April 2010, LTC HHH stated in a Memorandum for Record that the applicant had received a referred OER with a through date of 5 August 2009.  On 5 March 2010, the applicant signed a letter of referral that was placed inside his evaluation as an enclosure.  He acknowledged receipt of the referred report with a suspense date of 9 March 2010 to provide rebuttal comments.  As of 14 April 2010, the applicant had not provided rebuttal comments.

14.  On 23 April 2010, the CI was concluded.  The reviewing authority determined that no illegality, injustice, regulatory violation, or procedural error had occurred with regard to the contested OER.

15.  There is no evidence showing the applicant submitted rebuttal comments for the referred report.

16.  On 3 October 2010, the applicant appealed the contested OER to the OSRB requesting it be removed from his AMHRR. 

17.  The OSRB determined there was no evidence that the rating officials' comments on the report were anything other than their considered opinion of the applicant.  The OSRB concluded that, in the absence of more compelling evidence which clearly and convincingly showed that the presumption of regularity should not be applied to the report, or that it contained material errors, was inaccurate, or unjust, removal of the contested OER was not recommended.

18.  On 4 January 2012, the applicant requested reconsideration of the previous appeal to the OSRB, to remove the contested OER from his AMHRR.  With respect to the new evidence in support of his appeal, the OSRB determined the Army Regulation 15-6 investigation was inconclusive as to whether he committed adultery.  He also did not have a prescription before the 29 October 2008 urinalysis and obtained the prescription the day after the urinalysis.

19.  He provided a memorandum, dated 16 September 2011, from the Chief, Criminal Law Division, Office of the Staff Judge Advocate, Joint Base Lewis-McChord, WA showing:  

	a.  On 22 October 2009, the Acting Commanding General (CG) of Fort Lewis issued a GOMOR to the applicant for involvement in an inappropriate relationship and wrongful use of amphetamines.  

	b.  On 6 November 2009, the Acting CG heard the rebuttal statement from the applicant and determined there was insufficient evidence to issue the GOMOR to him.  The Acting CG destroyed the GOMOR and no further action was taken.  The hearing was witnessed by the Chief, Military Justice and the applicant's battalion commander.

20.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  It states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

     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.  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.  Paragraph 3-23 stipulates 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.  Reports will not be delayed to await the outcome of a trial or investigation.  Reports will be done when due and contain what information is verified at the time of preparation.

     c.  This regulation states, in pertinent part, that the primary purpose of a CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.  

     d.  Paragraph 6-11 states that 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 or 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.  The burden of proof rests with the appellant.

	e.  Paragraph 6-11 further states that for a claim of inaccuracy or injustice of a substantive type in an evaluation report, evidence will include statements from third parties, rating officials or other documents from official sources.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  

21.  Army Regulation 600-8-104 (AMHRR Management/Records) governs the composition of the AMHRR and states that the performance section 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 states the DA Form 67-9 (OER) is filed in the performance section of the Soldier's AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for removal of the contested OER from his AMHRR.  Though he makes arguments related to his alleged positive test for amphetamines for which he did or did not have a prescription, this issue is not mentioned on the contested OER.  Therefore, this argument does not mitigate the decision of whether his OER should be removed or retained in his AMHRR.

2.  His contentions regarding his rater's comments that he lied either to his company commander or to his rater about an alleged extramarital affair were carefully considered.  However, the evidence he provided does not overcome what the rater knew to be true.  Further, he has provided insufficient evidence to show the SR comments that he demonstrated a lack of integrity and made errors forecasting required ammunition during training were not true.  As such, the available evidence is insufficient to cast doubt on the accuracy of the rater and SR comments.  

3.  The record shows his OER for the period ending 5 August 2009 was accepted by HQDA and is included in his AMHRR.  As such, the document is presumed to be administratively correct and to represent the considered opinions and objective judgment of his rater and SR.  There is no evidence the applicant submitted rebuttal comments for the OER.

4.  In order to justify deletion or amendment of an evaluation report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Notwithstanding his arguments to the contrary, the applicant has failed to show, by clear and convincing evidence that his contested OER contained material error, inaccuracy, or injustice.  Therefore, he is not entitled to the requested relief.  The contested OER contained in his AMHRR is properly filed and should not be removed.


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 to amend the decision of the ABCMR set forth in Docket Number AR20130005353, dated 15 August 2013.




      _______ _   _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)                                         AR20130019267



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ABCMR Record of Proceedings (cont)                                         AR20130019267



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