BOARD DATE:	4 June 2014

		DOCKET NUMBER:  AR20140002751 


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 a previous request to remove/redact his referred DA Form 1059 (Service School Academic Evaluation Report (AER)), covering the period from 28 October 2007 through 6 February 2008 from his Official Military Personnel File (OMPF).  As a new issue, he requests transfer of the AER from the performance to the restricted section of his OMPF.  In addition, the applicant requests a memorandum from the Commanding General (CG), U.S. Army Human Resources Command (HRC), dated 2 October 2013, be transferred from the performance section to the restricted section of his OMPF. 

2.  The applicant states he is making a new argument that the presumption of regularity should not be applied to the contested AER on the basis of injustice.  The Board denied his request to remove/redact the contested AER because he did not provide evidence or present any arguments as to why the AER should be removed/redacted.  He further states the memorandum from the CG, HRC should be transferred from the performance section to the restricted section of his OMPF on the same basis of injustice.

3.  He states:

* the Fiscal Year (FY) 2013, Major (MAJ), Judge Advocate General's Corps, Promotion Selection Board convened and he was not selected for promotion

* he was not considered by a selection board for promotion to MAJ, and it is reasonable to believe the board viewed the GOMOR, which has since been transferred from the performance to the restricted section of his OMPF
* the AER will preclude any chance of him being selected for promotion
* he was directed by HRC to show cause why he should be retained on active duty
* it is an injustice that his chances for selection and promotion to MAJ are jeopardized by the AER and memorandum remaining in his OMPF
* his CG recommended he be retained on active duty at the same time he submitted his appeal to the Board
* the Board demonstrated their trust and confidence in him by transferring the GOMOR 
* he desires the opportunity to continue his service in the Army, but the AER states he received a GOMOR
* the AER refers to misconduct worthy of initiating show cause to remain on active duty
* he has accepted responsibility for his actions in 2008, and he has done everything to become a trusted advisor, officer, and judge advocate
* what is the point of moving the GOMOR to the restricted section of his OMPF if the promotion selection board can still learn of the GOMOR 

4.  He provides:

* AER
* memorandum from HRC, dated 2 October 2013
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings

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 ABCMR in Docket Number AR20130016368, on 26 November 2013.

2.  The applicant provides new arguments that require reconsideration of this case.

3.  The applicant executed an oath of office on 10 February 2002 and he was originally appointed as a U.S. Army Reserve (USAR) Military Intelligence officer.  He entered active duty on the same date for a period of 3 years.  He was promoted to the rank of CPT on 1 July 2003.  

4.  He was ordered to active duty as a CPT in the Regular Army, Judge Advocate General’s (JAG) Corps, and he entered active duty on 28 October 2008.  He was assigned to The JAG Legal Center and School (TJAGLCS), Charlottesville, VA, for the Judge Advocate Officer Basic Course (JAOBC).

5.  On 4 February 2008, the applicant's spouse filed a complaint with the Commandant, TJAGLCS, stating that he was having an affair with a fellow student.  On 5 February 2008, an Investigating Officer (IO) was appointed to conduct a commander's inquiry into the allegations presented by his spouse.  The IO subsequently found the applicant had engaged in an adulterous relationship.

6.  On 14 February 2008, the applicant received a GOMOR issued by MG R_______ J. R___ Jr., Commander, Military District of Washington (MDW).  The GOMOR stated the applicant was being reprimanded for engaging in an adulterous relationship with a fellow JAOBC student.  MG R_______ J. R___ Jr. stated he was imposing the reprimand as an administrative measure under Army Regulation 600-37 (Unfavorable Information) and not as punishment under Article 15 of the Uniform Code of Military Justice.

7.  On 19 February 2008, the applicant acknowledged receipt of the GOMOR and submitted a rebuttal.  

8.  On 6 March 2008, after carefully reviewing the rebuttal submitted by the applicant, the facts and circumstances pertaining to the misconduct, and his chain of command's recommendations, MG R_______ J. R___ Jr. directed the GOMOR be filed in the applicant’s OMPF.

9.  On 6 March 2008, he received the contested AER which covered the period 28 October 2007 through 6 February 2008 while he was a student at JAOBC, TJAGLCS, Charlottesville, VA.  Item 14 (Comments) of the report contained the statements "[the applicant] maintained an appropriate attitude, good motivation, and willingness to respond to guidance." and "During the course [the applicant] engaged in an adulterous relationship with a fellow classmate for which he received a [GOMOR]."  This AER was a referred report; he chose not to submit any comments on the report.

10.  On 23 January 2013, he filed an appeal with the Department of the Army Suitability Evaluation Board (DASEB) requesting the transfer of his GOMOR to the restricted section of his OMPF.



11.  On 25 April 2013, his request to have the GOMOR transferred was denied.  The DASEB Record of Proceedings stated that given the seriousness of his misconduct, along with his rank and duty position at the time of the misconduct, and that because he was a JAG officer, it raised serious concern that it would be in the best interest of the Army at that time to transfer the GOMOR.  

12.  On 10 June 2013, by memorandum, the CG, HRC notified the applicant of Initiation of Elimination.  The applicant was identified by the FY12, Major, Judge Advocate General's Corps, Promotion Selection Board to show cause for retention on active duty because of a GOMOR.  On 18 July 2013, he submitted his rebuttal.  On 13 June 2013, the CG, U.S. Army Maneuver Support Center of Excellence, Fort Leonard Wood, MO, recommended that the case be closed without further action and the applicant be retained on active duty.  

13.  On 27 August 2013, he filed a request with the ABCMR to transfer his GOMOR to the restricted section of his OMPF and to remove/redact his referred AER, covering the rated period from 28 October 2007 through 
6 February 2008.

14.  On 2 October 2013, by memorandum the CG, HRC, terminated elimination processing.  The case was returned to the General Officer Show Cause Authority directing that no board of inquiry be conducted.  The CG stated although this action had been terminated, it did not preclude the underlying misconduct, or substandard performance, evidenced in his OMPF, from being used in any future administrative actions.  Future selection boards would continue to see the derogatory information in his performance section, and accordingly would have the discretion to initiate a Show Cause in the future.  The memorandum was placed in the performance section of his OMPF and the Initiation of Elimination action documents to show cause to retain on active duty were placed in the restricted section of his OMPF. 

15.  On 26 November 2013, the ABCMR granted the applicant's request to transfer the GOMOR, dated 15 February 2008, from the performance section to the restricted section of his OMPF.  In addition, the DASEB Record of Proceedings and related documents were also transferred to the restricted section of his OMPF.  His request to remove/redact his AER was denied.

16.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the 
policies for completing evaluation reports that support the Evaluation Reporting System.  It states that evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared 

by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  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.

	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, 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 3-27 states AER's with no response, unsatisfactory rating, marginally achieved course standards rating, failed to achieved course standards rating, any derogatory comments, fail Army Physical Fitness Test and/or “no” entry for height and weight will be referred to the rated Soldier or student by the reviewing official for acknowledgment and an opportunity to comment before being submitted to Headquarters, Department of the Army (HQDA). 

	c.  Paragraph 4-7 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.

	d.  Paragraph 4-11 states the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity will 
not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence 
will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions.



17.  Army Regulation 600-8-104 provides policies and procedures for managing personnel records.  Table B-1 (Authorized Documents for Filing in the OMPF) shows Department of the Army (DA) directed elimination actions are filed in the restricted section of the OMPF.  

18.  Army Regulation 600-8-104, Table 3-1 states that the restricted section of the OMPF contain documents that may normally be improper for viewing by selection boards or career managers.  The performance section contains performance related information to include evaluations, commendatory documents, and specific disciplinary information and training/education documents.  The primary purpose of the performance folder is to provide necessary information to officials and selection boards tasked with assessing Soldiers for promotion, special programs, or tours of duty.  

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request to transfer his referred AER for the period 28 October 2007 through 6 February 2008 from the performance section to the restricted section of his OMPF.  

2.  The evidence of record confirms he received a referred AER for engaging in an adulterous relationship with a fellow officer.

3.  There is no evidence of error in the information recorded on the AER, and there is no documentary evidence substantiating the applicant's claim that the 
presumption of regularity should not be applied to the AER and the AER should be removed/redacted on the basis of injustice.

4.  By regulation, in order to support removal of a document properly filed in the OMPF there must be clear and convincing evidence that shows the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.   

5.  The applicant has not provided clear and convincing evidence of a strong and compelling nature establishing that the presumption of regularity should not be applied to the AER.  Accordingly, there is no basis for removing/redacting the AER from the applicant's OMPF. 

6.  It is unfortunate that the comment on the AER is linked to the GOMOR, which has since been transferred to the restricted portion of his OMPF.  However, a 

GOMOR may be transferred based on intended purpose served; an evaluation report is a historical record and not intended to “teach a lesson.”  Based on the different purposes of the two documents, the transfer of one does not equate to an injustice in not transferring the other.

7.  In view of the foregoing, there is no basis for granting the requested relief.

8.  With respect to the memorandum from the CG, HRC, dated 2 October 2013, concerning the CG's decision to terminate elimination action, the governing Army regulation states DA directed elimination actions are filed in the restricted section of the OMPF.  Therefore, the memorandum CG, HRC, dated 2 October 2013, should be transferred to the restricted section of the OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x______  __x______  _x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that partial relief should be granted.

2.  In regard to the applicant's new issue, to request to transfer the memorandum from the CG, HRC, dated 2 October 2013 from the performance section to the restricted section of his OMPF, the evidence presented does demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are sufficient as a basis for correction of the records of the individual concerned by transferring the memorandum from the CG, HRC, dated 2 October 2013 from the performance section to the restricted section of his OMPF.

3.  In regard to the applicant's request for reconsideration of his request to transfer the referred AER from the performance section to the restricted section of his OMPF, 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 decisions of the ABCMR set forth in Docket Number AR20130016368 dated 26 November 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)                                         AR20140002751





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ABCMR Record of Proceedings (cont)                                         AR20140002751



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