IN THE CASE OF:  	  

		BOARD DATE:  4 September 2014	  

		DOCKET NUMBER:  AR20130019495 


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 defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

	a.  removal of the Officer Evaluation Report (OER) for the period 1 July 2008 through 30 November 2008 (hereafter referred to as the referred OER) from his Official Military Personnel File (OMPF); and

	b.  restoration of all pay, allowances, entitlements, rights, and privileges, which were affected by the referred OER and led to his discharge from the U.S. Army on 1 November 2011 (in effect, reinstatement of his commission that was lost when he was discharged from the Regular Army on 1 November 2011).

2.  Counsel states the applicant successfully completed officer candidate school (OCS) as a distinguished military graduate.  Counsel provides the applicant's military history including his assignments, OER information, awards and decorations, and military training completed.  On 10 November 2008, while the applicant was deployed in Iraq he admitted to taking an advanced combat optical gun sight (ACOG).  On 17 March 2009, he received the referred OER.  Counsel provides a timeline of events including a recommendation that the applicant show cause for retention on active duty; suspension of favorable personnel actions; Deputy, Chief of Staff, G-1 guidance that the applicant not show cause for retention due to his second non-selection for promotion to captain; and his discharge.

3.  Counsel further states the applicant recognized he failed to uphold the core values of an officer in the U.S. Army and has taken this lesson dearly to his heart.  The applicant's honorable and faithful service far outweighs any negative aspect presented and reviewed today.  He has attempted to demonstrate that, in spite of the referred OER, his performance of duty was superior and he received four consecutive outstanding performance reports.  At the time of the incident the applicant was led to believe that nothing significant would happen to him and he would be allowed to continue in the Army.  He made his written statement to cooperate with his superiors, there was no formal investigation conducted, and his statement was the only statement given regarding the missing equipment.  It was the applicant's strongest desire to recover and continue making a contribution to the Army, and he humbly requests the opportunity to do so.  He is currently pursuing a master's degree.  In conclusion, counsel states the applicant had an excellent signal career and the missing equipment was an isolated one-time incident in an otherwise stellar career.   

4.  Counsel provides a petition with 18 attachments identified in the "Supporting Documentation" list submitted with this application.

CONSIDERATION OF EVIDENCE:

1.  On 14 September 2006, the applicant enlisted in the Regular Army.  On 21 March 2007, he was discharged for the purpose of accepting a commission.

2.  On 22 March 2007, he graduated from OCS as a distinguished military graduate.  On the same date he was commissioned a second lieutenant in the Regular Army.

3.  The applicant's OER for the period ending 30 June 2008 shows his rater marked the block for "outstanding performance, must promote" and his senior rater (SR) marked the block for "best qualified."  

4.  On 17 March 2009, he received the referred OER, which shows he was assigned to Company C, 1st Battalion, 1st Brigade Combat Team, in Iraq as a platoon leader during the evaluation period.

	a.  In Part IV (Performance Evaluation - Professionalism), the rater placed an "X" in the "NO" block for Honor, Integrity, Courage, Loyalty, Respect, Selfless-Service, and Duty.
	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 rater comments, the rater stated, in part, "[The applicant's] moral character was compromised when he deliberately stole an ACOG from the company's sensitive item MILVAN and attempted to place blame on another Soldier."

	c.  In Part Vc (Comment on Potential for Promotion), the rater stated, "[The applicant] should not be promoted to the rank of captain."

	d.  In Part VIIa (Promotion Potential) the SR placed an "X" in the box for "Do Not Promote."  In the block provided for SR comments, the SR stated, "[The applicant] had potential to be a great officer until he was caught stealing ACOG's from the theater equipment set.  His judgment to blame one of his subordinate Soldiers for his theft further describes his lack of character and lack of military bearing that is expected of a U.S. Army officer.  [Applicant] made a cognitive decision and as the Task Force Commander, I do not support such actions that risk the perception of professionalism of officers in the U.S. Army.  Do not promote [applicant] and separate him from the Army at the earliest opportunity.

	e.  In Part VIId (List Three Future Assignments for Which This Officer Best Qualified) the SR stated, "This officer should not be assigned any jobs of responsibility or over troops."

5.  His counsel provides:

	a.  a DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 10 November 2008, showing a U.S. Army military police official advised the applicant of his rights due to being suspected of larceny of government property.

	b.  A DA Form 2823 (Sworn Statement), dated 10 November 2008, showing he secured an ACOG in his pocket and walked out of the container.  He placed it underneath the tent he was sleeping in.  On the night of the search he took it from the hiding spot and placed it with Specialist (SPC) R's belongings.  He indicated he had no previous negative feelings toward SPC R.  He stated he had no reason for taking the ACOG or for placing it in SPC R's bag.

6.  There is no evidence showing he submitted rebuttal comments for the referred report.

7.  There is no evidence showing he appealed the referred OER to the Officer Special Review Board requesting it be removed from his OMPF.

8.  The applicant's OERs for the periods ending 21 May 2009, 30 November 2009, 21 August 2010, and 15 April 2011 show his raters marked the block for "outstanding performance, must promote" and his SRs marked the block for "best qualified."  

9.  A memorandum from the Chief, Retirements and Separations, U.S. Army Human Resources Command (HRC), dated 27 May 2010, shows the Fiscal Year 2010 (FY10) Captain, Army, Promotion Selection Board recommended that the applicant be required to show cause for retention on active duty.

10.  An Officer Retirements and Separations, HRC, Memorandum for Record, dated 27 June 2011, stated that on or about 14 March 2011 HRC received a show cause recommendation for the applicant as a result of the FY11, Captain, Army Competitive Category Promotion Selection Board.  The applicant was a two-time non-select for promotion as a result of this same board.  Per a decision from the Deputy, Chief of Staff, G-1, Director Military Personnel Management, the applicant would be issued the non-select letter with acknowledgment and would be separated no later than 1 November 2011, which took precedence over the show cause action.  It was determined that the show cause action would not be processed per Deputy, Chief of Staff, G-1 guidance.  

11.  The applicant acknowledged receipt of his notification memorandum informing him of his mandatory separation date of 1 November 2011.

12.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 November 2011 shows he was discharged by reason of non-selection for permanent promotion.

13.  Counsel provides five memoranda supporting his request as indicated below.

	a.  In a 5 March 2013 memorandum, a captain indicated he and the applicant had spent much off-duty time together in Germany and that he had a limited professional interaction with the applicant during that time.  He further indicated the applicant had a reputation of being dependable, he was quick to assist a fellow officer, and he worked late on a number of occasions.  Outside of work he was a friend that the author of the memorandum could count on.

	b.  Another captain writes that he and the applicant worked together on projects during his assignment in Germany and had almost daily contact both professionally and as friends during his assignment in Germany.  During the entire time he knew the applicant in the professional aspect, the applicant maintained a steadfast character marveled at by his peers, subordinates, and leaders.  He was deliberate in what he did and put others' needs before his own.  The applicant was a tactician in his field with a technical competency unmatched by peers in his field.  He further states he believes that anything the applicant did was a momentary lapse, and was not a typical trait.

	c.  A major writes that she met the applicant in January 2011 and observed him on a daily basis until August 2011.  She provides a discussion of the applicant's possession of all seven Army core values that he displayed in the months that she observed his character.  She stated he was very confident in his technical abilities and displayed loyalty and duty on a daily basis in the work that he performed and the leadership that he provided.  The Army value that he displayed most was personal courage.  She states that she saw a deep desire in the applicant to show that he was an honorable Soldier and leader.

	d.  A command sergeant major writes that he served with the applicant in Germany from 2009 to 2011.  He states the applicant was a dedicated Soldier and leader committed to mission accomplishment, whose work ethic was untiring.

	e.  A lieutenant colonel writes that since the applicant came to work for him in 2009 they created a very close relationship as he depended enormously on the applicant's technological skills in order to sustain the battalion.  He states the applicant was a very honest, trustworthy, and ethical individual.

14.  Army Regulation 623-3 (Evaluation Reporting System) in effect at the time, prescribed the policies for completing evaluation reports that support the Evaluation Reporting System.  It stated evaluation reports accepted for inclusion in the official record of a Soldier were 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 stated Army evaluation reports were assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer.  Performance would 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 would 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 3-21 states, in part, that in preparing their comments, rating officials will convey a precise but detailed evaluation to communicate a meaningful description of an officer’s performance and potential.  In this manner, both Army selection boards and career managers are given the needed information on which to base a decision.

	c.  Paragraph 3-34 stated the following types of reports would be referred to the rated officer by the SR for acknowledgment and comment before they were sent to Headquarters, Department of the Army (HQDA):

* a relief for cause report submitted under the provisions of 
paragraph 3-58
* any report with negative remarks about the rated officer’s Values or Leader Attributes/Skills/ Actions in rater’s narrative evaluation
* any report with a rating of “NO” in Part Iva-c
* any report with an entry of “FAIL” in Part IVc, indicating noncompliance with Army Regulation 350-1; or an entry of “NO” indicating noncompliance with Army Regulation 600-9
* any report with a performance and potential evaluation in Part Va of “Unsatisfactory performance. Do not promote” or narrative comments to that effect from any rating official
* any report with a performance and potential evaluation in Part Va of “Other” where the required explanation has derogatory information
* any report with a senior rater promotion potential evaluation of “Do Not Promote” in Part VIIa
* any report with a promotion potential evaluation of “Other,” in Part VIIa where the required explanation has derogatory information
* any report with a senior rater potential evaluation in the bottom two boxes of Part VIIb
* any report with negative comments in Parts Vb, Vc, VI, or VIIc

	d.  Paragraph 6-11 stated the burden of proof rested with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must have produced evidence that clearly and convincingly established that the presumption of regularity should not be applied to the report under consideration and that action was warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must have been of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

15.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states that the performance section 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 states the DA Form 67-9 (OER) is filed in the performance section of the Soldier's OMPF.

16.  Army Regulation 600-8-29 (Officer Promotions) states a Special Selection Board (SSB) may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following:

	a.  an officer was not considered from in or above the promotion zone by a regularly scheduled board because of an administrative error (SSB required); 

	b.  the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); and/or

	c.  the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's counsel argues, in effect, that the applicant's excellent signal career, the fact that he recognizes he failed to uphold the core values of an officer in the U.S. Army, and the fact that he has taken this lesson to heart far outweighs the "missing equipment," which was an isolated one-time incident in an otherwise stellar career.  However, this argument is not sufficient to support the removal of the referred OER from the applicant's OMPF.

2.  The referred OER shows he stole an ACOG, which he admitted to in a sworn statement.  Not only that, he tried to place the blame on a junior enlisted Soldier.  There is no evidence of error in the information recorded on this OER.
  
3.  The record shows his referred OER was accepted by HQDA and is included in his OMPF.  As such, the documents are presumed to be administratively correct and represent the considered opinions and objective judgment of his rater and SR at the time.  There is no evidence the applicant submitted rebuttal comments for the referred OER.

4.  Though the applicant's subsequent OERs and the support he obtained from multiple officers and a senior noncommissioned officer reflect well on him, most of the information relates to his more recent performance and demonstrated conduct.  However, selection boards consider more than that.


5.  The applicant and counsel have not provided clear and convincing evidence of a strong and compelling nature establishing that the presumption of regularity should not be applied to the referred OER.  The referred OER contained in his OMPF is properly filed.  Accordingly, there is no basis for removing the referred OER from the applicant's OMPF.

6.  It would only be appropriate to reinstate the applicant if an SSB using the FY10 or FY11 criteria would select him for promotion.  Because there is no basis for removing the referred OER, there is no basis for referring the applicant to an SSB to be reconsidered for promotion to CPT.  Absent selection by an SSB for promotion to CPT, the reason for his discharge stands and there is no basis for reinstating him in the Army.

7.  In view of the foregoing, there is an insufficient basis for granting the applicant's request.  

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)                                         AR20130019495



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ABCMR Record of Proceedings (cont)                                         AR20130019495



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