IN THE CASE OF:	  

		BOARD DATE:	 13 March 2014 

		DOCKET NUMBER:  AR20140001465 


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 a general officer memorandum of reprimand (GOMOR), dated 20 December 2010; a referred officer evaluation report (OER), dated 25 April 2011; and all associated documents from all sources/Army records where they may be filed.

2.  The applicant states, in effect, he did not assault his mentally ill wife (now former) as alleged and his career is being destroyed by the adverse actions taken against him after the incident in question.

3.  The applicant provides a tabbed binder of documents which includes a 7-page memorandum for the Army Board for Correction of Military Records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests consideration of the adverse actions that have been taken against the applicant and the fact that the applicant's wife inflicted the injuries upon herself.

2.  Counsel states the Board should address the evidence that is contrary to the claims upon which the adverse actions were based.

3.  Counsel provides no additional evidence.



CONSIDERATION OF EVIDENCE:

1.  The applicant, a Regular Army major, was serving in Germany on 3 January 2011 when he received a GOMOR from the commanding general (CG), dated 20 December 2010, for assaulting his wife on 23 August 2010 in government quarters in the presence of minor children.  The imposing officer also noted the applicant's wife had recanted her statement after making multiple statements to the effect that he was responsible for her injuries.

2.  On 20 January 2011, the applicant submitted a two-page rebuttal to the GOMOR in which he insisted that he did not strike his wife but instead took a defensive posture to prevent her from injuring him.  He contended that she inflicted the injuries on herself and stated his wife suffered from bipolar disorder.

3.  On 7 February 2011, the CG directed filing of the GOMOR in the performance folder of the applicant's Army Military Human Resource Record (AMHRR).

4.  On 5 May 2011, the applicant received a change-of-rater OER covering the period 11 April 2009 through 25 April 2011.  In Part IV (PERFORMANCE EVALUATION – PROFESSIONALISM), he received a "NO" rating for Part IVb.1.3 (EMOTIONAL – DISPLAYS SELF-CONTROL; CALM UNDER PRESSURE).  He received "yes" ratings for the remaining blocks.

5.  In Part V (PERFORMANCE AND POTENTIAL EVALUATION – RATER), he received a rating of "SATISFACTORY PERFORMANCE, PROMOTE."  The supporting comments reflect that he received a GOMOR for misconduct outside of his formal duties.

6.  In Part VII (SENIOR RATER), received a rating of "FULLY QUALIFIED" from his senior rater who placed him below the center of mass of his senior rater profile.  He also indicated the applicant's off-duty performance fell short of Army standards for conduct and he received a GOMOR for his misconduct.  The OER was considered adverse and as such was referred to the applicant for comment.  The applicant responded to the effect that the "NO" entry was unjust as it was not related to his duty performance.

7.  There is no evidence in the available records to show he has appealed the OER to the Officer Special Review Board.

8.  On 26 October 2012, the applicant appeared with military counsel before a "show-cause" board (otherwise known as a board of inquiry) convened in Grafenwöhr, Germany, to determine if he should be separated from the Army because of substantiated derogatory activity which resulted in a GOMOR and a referred OER.

9.  After reviewing all of the evidence, the board found the misconduct occurred as a direct result of multiple personal and family stressors that got out of control and the simple assault was a one-time event.  The board also found the applicant's actions were not in keeping with Army values and were complicated by post-deployment stressors.  The board recommended the applicant's retention in the service.  On 20 November 2012, the convening authority approved the findings and recommendations of the board.

10.  On 19 December 2012, the U.S. Army Human Resources Command notified the applicant that the elimination action was closed and he should apply to the Department of the Army Suitability Evaluation Board (DASEB) if he desired removal of the documents related to his "show-cause" board from his records.

11.  On 7 February 2013, the applicant submitted an appeal to the DASEB requesting transfer of the GOMOR to the restricted folder of his AMHRR based on intent served.  He also provided a statement from his spouse who recanted her version of the events.  The DASEB opined that despite the applicant's accomplishments since the imposition of the GOMOR, without more evidence of a compelling nature to show it would be in the best interest of the Army it would be premature to transfer the GOMOR to the restricted folder of his ASMHRR.  The DASEB denied his request on 17 May 2013.

12.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual personnel files.  Paragraph 7-2 (Policies and Standards) states that 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.  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 AMHRR or that it has served its intended purpose to support transfer from the performance folder to the restricted folder of the AMHRR.

13.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures and serves as the authority for preparation of the OER.  It provides that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer is presumed to be administratively correct and to have been prepared by the properly-designated rating officials at the time of preparation.  Each report must stand alone.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation had it been known at the time the OER was prepared.

14.  Army Regulation 623-3 also provides that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

15.  Army Regulation 623-3 further provides that if referral of a report is required, the senior rater will provide the report to the rated individual for comments.  The rated Soldier may comment if he or she believes the ratings or remarks are incorrect.  The comments will be factual, concise, and limited to matters directly related to the contested report.  The rated Soldier's comments do not constitute an appeal or a request for a commander's inquiry.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's and his counsel's contentions and supporting documents were carefully considered and appear to lack merit.

2.  Notwithstanding the decision of the "show-cause" board, the applicant failed to show sufficiently convincing evidence that the GOMOR is unjust or untrue or that it has served its purpose.

3.  Although the applicant continues to maintain his innocence regarding the assault of his wife, the imposing CG noted something that convinced him that the applicant's hands were not as clean as he claimed.  This is further supported by the fact that the "show-cause" board also was not convinced that his hands were as clean as he claimed but that he should be retained despite his misconduct.

4.  The applicant's contention that the contested OER should be removed from his records or transferred to the restricted folder of his AMHRR because the ratings were unjust and based on an untrue incident was noted and also appears to lack merit.  He simply has not provided sufficient evidence to show that such was the case.

5.  The OER was not rendered as a form of punishment or to teach the applicant a lesson, but simply a means to document his performance and potential during the period specified by the report.

6.  While the report was considered adverse, the rating officials did an excellent job explaining the circumstances surrounding the rating and at the same time preserving the integrity and highlighting the applicant's future potential.

7.  Therefore, inasmuch as he has failed to show any error or injustice associated with the GOMOR or the contested OER, there appears to be no basis to grant his 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 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)                                         AR20140001465



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ABCMR Record of Proceedings (cont)                                         AR20140001465



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