IN THE CASE OF:	  

		BOARD DATE:  3 April 2014

		DOCKET NUMBER:  AR20140003597 


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, in effect, removal of the relief-for-cause DA Form 67-9 (Officer Evaluation Report (OER)) for the period 30 July 2008 to 5 February 2009 from his Army Military Human Resource Record (AMHRR).  He also requests a personal appearance before the Board.  

2.  The applicant states the entire report is unjust and completely unfounded.  He states:

	a.  On or about 24 January 2009, he found out that his staff sergeant (SSG)/E-6 platoon sergeant (male) had stayed at his (applicant's) SSG squad leader's (female) quarters while she was working a shift.  When he found out that his platoon sergeant had stayed at the squad leader's house, he asked the company commander to move the squad leader to another platoon because the squad leader and platoon sergeant had a very close, platonic friendship.  The commander was very aware of the friendship as well and agreed that the squad leader would be moved.  

	b.  His company commander subsequently conducted an unlawful search of his squad leader's premises and his platoon sergeant was present at the quarters at the time.  When asked if he ever knew about the platoon sergeant being there he responded honestly that he knew of one instance during the inauguration and that's why he asked to have the squad leader moved.  He then stated that by regulation they had not done anything wrong and that the right answer was to still move the squad leader.  The commander then told him that she would talk to the battalion commander about relieving him because he didn't agree with her accusations of fraternization and conduct unbecoming a noncommissioned officer (NCO).  He then told her that she was in the wrong for conducting an illegal search of the squad leader's quarters.  He then saw the battalion commander and stated the same.  The battalion commander immediately relieved him for allowing fraternization in his platoon. 

3.  He states he will supply what he has available to him but the investigations given to him that he requested under Freedom of Information Act (FOIA) had several pages blacked out.  He appealed the redacted versions and received a denial for unredacted versions from the Office of the General Counsel.  It does somewhat specify that his actions were appropriate but it does not give too much detail about the inappropriate conduct of his company and battalion commander.  The company commander was given a General Officer Memorandum of Reprimand (GOMOR) for the incident and the battalion commander was forced to retire.  The only thing he received was the relief-for-cause OER and the Inspector General (IG) could not really help him with that because it was an administrative action and not a punitive action.  The only recourse was appeal.

4.  He states he is a year group 2007 Captain (CPT) currently being considered by the Officer Separation Board (OSB) that will be conducted in March 2014.  The OER was placed in his file sometime around December 2009 just prior to the convene date of his promotion board to CPT.  He gathered some documentation to appeal if he was not promoted to CPT but in April of 2010, Department of the Army (DA) released the CPT board results for his year group and he had a 
pin-on date of 23 March 2010.  His relief for cause OER was placed in his restricted file and since it had no negative effect on his career he decided not to worry about the appeal anymore.  However, since the separation board will review his restricted file it is imperative that he has the relief-for-cause OER removed.  He looked to appeal under the provisions of Army Regulation 623-3 (Evaluation Rating System).  However, it states if he did not appeal within 3 years that it was untimely and he must address the situation to the Army Board for Correction of Military Records (ABCMR).  His Branch has already stated that he is at a severe risk of being cut by the OSB because of the OER.

5.  The applicant provides:

* OER for the period ending 5 February 2009
* IG FOIA communications
* redacted Report of Investigative Inquiry (ROII) WZ 09-0035
* redacted ROII WZ 09-0037
* redacted ROII WZ 09-0049
 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military record shows, with prior enlisted service, he was appointed a Reserve commissioned officer as a second lieutenant on 15 December 2006.  He was promoted to captain on 23 March 2010.

3.  On 6 May 2009, he received a relief-for-cause OER for the period 30 July 2008 to 5 February 2009 for duties as a platoon leader.  His rank during the rating period was first lieutenant.  The OER is currently filed in the restricted portion of his AMHRR.  The OER shows the following entries:

	a.  In Part IId (Authentication), the rater noted this was a referred OER and an "X" was placed in the "Yes" block to indicate the applicant wished to make comments.

	b.  In Part IVb2 (Conceptual), the rater placed an "X" in the "No" block.

	c.  In Part IVb3 (Decision-Making) and (Learning), the rater placed an "X" in the "No" block.

   d.  In Part Va (Performance and Potential Evaluation), the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block.
   
   e.  In Part Vb the rater entered the following comment:
   
[Applicant's] performance during this period has met with mixed reviews.  His technical and tactical abilities have been proven through a myriad of events such as conducting security during the Army Ten-Miler, executing collective training building towards the Company's first-ever Convoy Live Fire and serving as the OIC [officer-in-charge] for military police security during the 56th Presidential Inauguration.  Administratively, [applicant] has not fulfilled all of the requirements and expectations required of a military police platoon leader.  He experienced numerous difficulties in confronting leadership issues with NCOs in his platoon and dealing with those challenges in a timely manner.  He has not ensured that his Soldiers' personal or professional concerns were dealt with appropriately.  These deficiencies and an inability to repair have resulted in his relief from duties as a platoon leader.

	f.  In Part Vc, the rater entered, "Requires additional time and training in current grade – not ready for promotion."

	g.  In Part VIIa (Senior Rater), the senior rater placed an "X" in the "Do Not Promote" block.  In Part VIIb, the no box was checked.  In Part VIIc, the senior rater entered the following comments:

I relieved [applicant] for being derelict in his duties and for failing to exercise proper judgment as it related to inappropriate relationships between senior leaders in his platoon - - at this time he cannot effectively lead Soldiers in this battalion.  Another platoon leader assignment outside this unit might provide an opportunity for him to address his leadership shortcomings and allow for continued development.  I do not recommend him for promotion at this time and fully endorse the rater's comments.

4.  The contested OER was signed by the rater/senior rater on 29 April 2009 and by the applicant on 6 May 2009. 

5.  The applicant's comments with regard to the contested OER and his relief-for-cause memorandum are not available for the Board's review.

6.  He provides a copy of a partially redacted ROII WZ 09-0035 which shows the relief-for-cause memorandum issued to him stated, in part, "on 27 Jan 09, Captain S and First Sergeant H conducted a courtesy inspection of SSG G's quarters on Fort McNair in accordance with the regimental commander's Policy Letter 7 – Appropriate Conduct."  The remainder of this quotation is redacted.

7.  The partially redacted ROII WZ 09-0037 shows the documents examined during the due process review included:

* ANOG Command Policy Letter 7, Chapter 1 (Appropriate Conduct and Environment), 1 August 2008
* DA Form 4856 (General Counseling Form) pertaining to the applicant (disrespect), 12 December 2008
* DA Form 4856 pertaining to the applicant (conduct unbecoming), 29 January 2009
* DA Form 4856 pertaining to the applicant (failure to obey order or regulation), 29 January 2009
* DA Form 4856 pertaining to the applicant (disobedience and fraternization), 29 January 2009
* relief-for-cause memorandum pertaining to the applicant, signed 5 February 2009
* Report of Inquiry, dated 6 March 2009
* Chapters 4-14 through 4-16, Army Regulation 600-20 (Army Command Policy), 18 March 2008
* DA Pamphlet 600-35 (Relationships between Soldiers of Different Rank), 21 February 2000
* Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) Report of Investigation (ROI), 5 May 2009   

8.  The partially redacted ROII WZ 09-0037 further shows the applicant's commander took action against him based on a number of incidents including being disrespectful and disobeying orders and ultimately losing faith in him to have proper judgment to lead a platoon in the battalion.

9.  The partially redacted ROII WZ 09-0049 shows that a completed Army Regulation 15-6 ROI concluded that the inspection of quarters conducted on 28 January 2009 was not conducted in accordance with procedures established in The Old Guard Policy Letter #7, and further concluded that they had conducted an unlawful search of the quarters by going beyond the stated scope of the inspection.

10.  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 2-18 states when an officer is officially relieved of duties and a "Relief for Cause" OER is subsequently prepared, the evaluation report requires referral to the rated officer.  All "Relief for Cause" OERs will be reviewed by the first U.S. Army officer or DA civilian in the chain of command or supervision who is senior to the individual directing the relief.  Reviewers of "Relief for Cause" OERs will—

* ensure that the narrative portions of the OER contain factual information that fully explain and justify the reason for the relief
* verify that any derogatory information has been accurately reflected
* ensure that the evaluation report has been prepared as prescribed by this regulation
* ensure that the evaluation report has been returned to the rated officer for comment
* review relieved Soldier’s referral comments, if provided

	c.  Paragraph 3-54 states a relief-for-cause OER report is required when an officer is relieved for cause regardless of the rating period involved.  Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty.  In this regard, duty performance will consist of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards shown in DA Form 67-9, Part IV.  These standards will apply to conduct both on and off duty.

     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.  

11.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has requested a personal appearance before the Board, there is sufficient evidence available for a fair and impartial consideration of his case without such an appearance.

2.  The applicant's contentions that the entire evaluation report is unjust and completely unfounded have been noted.  However, the evidence of record does not support his request for removal of the contested OER from his AMHRR.  

3.  The evidence of record shows the applicant received a relief-for-cause OER for the period 30 July 2008 to 5 February 2009 after his battalion commander relieved him from his platoon leader position for cause based upon a number of incidents including disobedience of a direct order, displaying a lack of sound judgment, showing disrespect, and culminating with the applicant's allowing fraternization between two NCOs in his platoon.  The OER was filed in the restricted portion of his AMHRR.

4.  The applicant has not shown this OER contains any serious administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.

5.  It appears the evaluation contained in the contested OER represents the considered opinions and objective judgment of the rating officials at the time of its preparation.  As a result, the contested OER was processed and accepted for filing in his AMHRR and there is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity and/or to remove/delete the contested report.  There is no evidence the applicant submitted rebuttal comments for the OER.  Therefore, he is not entitled to the requested relief.


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)                                         AR20140003597



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ABCMR Record of Proceedings (cont)                                         AR20140003597



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