BOARD DATE:	  24 April 2014

		DOCKET NUMBER:  AR20140003732 


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 the following corrections:

* reversal of his Army Officer Special Review Board (OSRB) decision
* removal of an officer evaluation report (OER) for the rating period 27 October 2009 through 26 October 2010 from his official military personnel file (now known as the Army Military Human Resource Record (AMHRR)
* removal of both OSRB documents pertaining to his appeal from his AMHRR

2.  The applicant states:

   a.  On 12 September 2013, the OSRB denied his appeal of removal of an OER covering the period 27 October 2009 through 26 October 2010.  The OSRB added two documents to his AMHRR documenting this decision.  On the basis of additional evidence, he requests the reversal of the OSRB decision and the removal of the OER and both OSRB documents from his AMHRR.

   b.  While the OSRB did identify some questions that the previously-submitted evidence did not address, other questions clearly show that the OSRB missed the intent of the senior officers who provided evidence in support of the original appeal.  With this appeal before the Army Board of Correction of Military Records (ABCMR), he provides additional testimony from the same senior officers who address the questions that the OSRB felt were significant enough to deny his original appeal.
   c.  The basis of his original appeal was not that there had been regularity issues with the execution of the report, but rather that the report itself consisted of inaccurate and untrue statements, which rendered it unjust.  He included a number of statements from superior, peer, and subordinate perspectives that proved the assertions made in the OER were false.  The fact that the senior rater (SR) was subsequently relieved from command due to abuse of authority and improper command influence provides an explanation of why the statements were so slanderous and unfair, but it was not proof of the injustice against him in and of itself.

   d.  The intended emphasis of his original appeal and the rebuttal to the OER was that the OER's generalization of his performance is false, as proved by the supporting statements to his appeal before the OSRB.  The OSRB analyst has not refuted those supporting statements, so he requests that the ABCMR consider his performance for the year to be "excellent" with the exception of the Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) investigation that his command pursued against him.  The word "excellent" comes from the OSRB analyst's description of Lieutenant Colonel (LTC) Cxxx's memorandum.  LTC Cxxx was his SR during two-thirds of the OER period before he was replaced by the SR who wrote the inaccurate and unjust OER.

   e.  In reviewing his previous appeal, the OSRB analyst raised four major points:

		(1)  The SR's own Relief for Cause on the basis of abuse of authority and improper command influence happened almost a year after his OER, so there was not a clear indication that his misconduct was a factor in his OER.

		(2)  The AR 15-6 investigation against him provides the basis for a negative generalization of a year's performance.  Unless disproved, this negative generalization overshadows the other evidence the applicant provides for an accurate view of his performance.

		(3)  The rater's comments were similar to the SR's and the applicant never claims that the rater was abusive or demeaning.

		(4)  His original OER rebuttal, packaged as part of the OER in his AMHRR, denied the substance of the OER, rather than claiming abusive conduct on the part of the SR.  Thus, the analyst believes that the applicant opportunistically attempted to take advantage of the rater's relief to support this OSRB appeal.



   f.  To address the OSRB analyst's point of number 3, he submits a statement from Colonel (COL) Mxxxxxx Hxxxxx, the AR 15-6 officer who investigated his SR's misconduct and whose recommendations led to the SR's relief for cause.  COL Hxxxxx's recommendation to the Commanding General (CG) was that all of the SR's administrative and judicial actions from the previous year should be reviewed.  He also specifically mentioned his OER as one of the SR's abusive behaviors.  This should specifically address the OSRB analyst's concerns that the SR's misconduct may not have manifested against him.

   g.  To address the OSRB analyst's point of number 2, he can show that the AR 15-6 investigation against him was improperly executed and shows at numerous times improper command influence and conflict of interest.  As a result, the allegations in the OER against him on the basis of that investigation should be invalidated.  COL Hxxxx has provided a memorandum to support this assertion.

   h.  The AR 15-6 was not impartial.  The investigating officer (IO) was his rater, a subordinate of the SR.  This meant the chain of command had absolute influence over the investigation.  When the chain of command had undue influence over any execution of military justice or personnel action, the presumption of government regularity does not apply, because government regularity strives to eliminate undue influence.  As a result, the AR 15-6 is invalid. The fact that the chain of command misused its undue influence during the AR 15-6 investigation is readily evident in the fact that the AR 15-6 showed a very limited and unjust view of his actions and policies.

   i.  The rater/investigator cited his (the applicant’s) orders as introducing a security vulnerability.  What the decidedly non-impartial rater decided not to show is that, at the same time, he (the applicant) gave other orders that mitigated the same vulnerability.  Sensitive items must either be secured in a General Service Administration approved safe or be under constant supervision.  Although he did direct his Soldiers to store some items in a non-approved container, he also directed them to maintain a tent guard at all times to ensure proper custody.  Thus, the rater's claim that his orders set the conditions for property loss is based on an inaccurate representation of the facts.

   j.  The rater/investigator criticized him for failing to submit or ensure the submission of sensitive item reports.  This is unfair; he did delegate one of his non-commissioned officers (NCO) to submit the reports.  The method that the first sergeant (1SG) implemented for reporting was flawed, as cited in the  AR 15-6, in that someone could fail to make a report and not be noticed.  Thus, the only way to truly ensure that a subordinate had reported was to ask them directly. 
   
   k.  Based upon AR 380-40 (Security - Policy for Safeguarding and Controlling Communications Security (COMSEC) Material) and AR 735-5 (Property Accountability Policies) and Brigade Standing Operating Procedures (SOP), the battalion commander/SR and executive officer/rater, and the Headquarters and Headquarters Company (HHC) commander should have been held liable by the AR 15-6/Financial Liability Investigations of Property Loss (FLIPL).  All three of these individuals signed off on an investigation that did not cite their failings and which attempted to attribute the failings of others to him.  Both regulations place specific limitations on IOs in an attempt to prevent this situation from happening and the investigators did not abide by those limitations.

   l.  The SR/battalion commander was liable under AR 38-40, paragraph 1-13c, in that he appointed Sergeant Axxxxxx as the COMSEC custodian, despite a lack of training and insufficient rank as per paragraph 2-2a.  This appointment was made at the recommendation of his NCO in-charge (NCOIC), who was the only person fully qualified for the appointment.

   m.  The SR was also liable as he did not perform a risk assessment of the storage facilities for the items in question, either in garrison or in the field, in that he released the battalion from duty despite the fact that the items had been reported missing.  Several witness statements during the AR 15-6 criticized this decision, but the IO neglected to mention it in his findings and recommendations.

   n.  The rater/executive officer was liable under AR 735-5, paragraph 2-8a(2), in that he repeatedly told him (the applicant) not to micromanage his NCOs.  This accusation came up when he found no guard on the tent or when he asked if the NCO he tasked had given the sensitive item report.  As a result, his orders and polices set the conditions of an environment of decreased property accountability because the custodians were not accountable for the care of the items in their care until after the loss.

   o.  The HHC commander was liable under AR 735-5, paragraphs 2-8a(1) and 2-8a(2), in that he willfully deployed the company out of the field in full knowledge that the items were missing.  This action, a violation of the Brigade SOP, was compounded by an another violation --  the HHC commander did not pass the report of the item's loss until almost 9 hours later, just before the battalion commander released the battalion.  The fact that the day in question was the HHC commander's wife's birthday gave him a strong motive to be at home that night instead of searching for items in the field.  Although he cannot prove this violation of duty was due to this personal interest, the fact should have been discovered and addressed by an impartial investigation.

   p.  The SR was relieved not only for command climate, but also for improper command influence.  The SR's leadership motto was "trauma and repetition."  Whenever a subordinate failed, even if it was through honest attempts or insufficient training, the SR fiercely retaliated against the subordinate.  In this situation, his rater had an option to take responsibility for his own failings as a rater -- which he believes were "honest" mistakes -- or to dishonestly attribute them to him.  In the AR 15-6, the rater cited him for passing orders to his troops that increased a security risk and as the origin of those orders.  The rater did not cite the additional orders he gave his Soldiers -- constant supervision of the items that were not secured in a locked container -- in order to mitigate the security risk that his orders introduced.

   q.  This simple fact, one incident of many, demonstrates the many ways in which the OER and the AR 15-6 are unfair.  The fact that his rater was given the opportunity to investigate a subordinate and thus misattribute his failures to the subordinate is exactly the injustice upon which his OER is based and to which he objects.

   r.  While the investigation dragged on interminably without taking additional evidence at the first week, he determined from the chain of command actions and attitudes toward him that the investigation was presenting an inaccurate portrayal of events.  He asked his rater for the chance to respond to the AR 15-6. The rater repeatedly denied this request, saying his chance would come, but his rater submitted it to the approving authority without giving him that option.  He eventually submitted a rebuttal directly to the approving authority, without ever receiving a chance to formally respond to the AR 15-6 and align his arguments against specific charges.  

   s.  There was cause to find the entire battalion's chain of command liable for the loss.  The fact that the investigation was targeted at him and misrepresented facts in order to implicate him makes it very clear that the chain of command exercised improper command influence in the OER and the investigation that supposedly supports it.

   t.  The fact that he did not base either his original rebuttal or his OSRB appeal on the SR's abusive behavior does not mean that it did not happen.  He approached other members of the command for this evidence even before the OER was signed.  It happened prior to the battalion commander's relief and his OSRB appeal.  

   u.  The SR/battalion commander incarcerated the S-6 shop in the Battalion Day Room for a little more than a week, calling several of them in after he had released them.  Both the SR and IO/rater repeatedly accused him and his shop of being spies, thieves, and liars.  The rater was much more civil than the SR with these accusations.  None of these accusations were ever proven.  Because the unit had already left the scene of the property loss and people had been released to their homes, the imprisonment cannot be justified for attempting to control the environment.  As a result, it did violate his Constitutional rights and those of his Soldiers.

   v.  The statements he submitted with his original appeal show that his performance of the year was "excellent" and the OSRB has not disputed that fact.  In this appeal, he specifically addresses the doubts that the OSRB expressed on whether the chain of command had committed inaccuracy and injustice in the case of his OER.  As a result, he requests the ABCMR to reverse the findings of the OSRB and remove the subject OER from his records.

3.  The applicant provides copies of the following:

* Officer Record Brief
* Contested OER
* Memorandum for Record (MFR)
* AR 15-6 Investigation and four DA Forms 2823 (Sworn Statement)
* Acknowledgement and Comments memorandum
* Letter of Referral
* OER Appeal packet
* OSRB Appeal
* Two statements of support for this appeal

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel reiterated the applicant's requests and recommended removal of the contested OER.

2.  Counsel states:

   a.  The SR and rater on the OER focus entirely on the applicant's loss of a simple key loader (SKL) assigned to the applicant's S-6 shop.  Apart from that, the only other listed fault of the applicant is an alleged micromanaging leadership style (and this is only mentioned by the rater to say that it caused the loss of the SKL).  Take away the loss of the SKL and you have an excellent performance throughout the 12-month rating period.

   b.  LTC Cxxx, the applicant's SR for two-thirds of the rating period, stated "the applicant served with a steady commitment to excellence…his hallmarks were consistency and dependability."  LTC Cxxx went on to say that he was surprised by the negative comments.

   c.  Chief among the factors that caused and led up to the loss of the SKL is an order given to the applicant (by his rater) to ensure that the SKLs were easily accessible for use at all times despite the fact that they were sensitive items.  To mitigate the vulnerability that the rater's order created, the applicant then gave his subordinates an order that the SKLs would be under 24-hour watch.  In the rater's comments, the rater noted that the applicant lost the SKL, but does not mention that he (the rater) and the battalion commander (SR) played a part in the decision-making for the SKLs safekeeping or that the applicant attempted to safeguard the SKLs by ordering constant supervision.

   d.  The evidence will show that the SR released the battalion from the field despite knowledge of the missing SKL (in violation of Brigade SOP), but the rater does not mention this.  The rater also failed to mention the fact that he (the rater) was the AR 15-6's IO for the loss of the SKL (appointed by the SR) when he himself and the SR should have been answering questions about the loss.  That fact, that the rater should have been investigating his supervisor's (SR) actions, is the epitome of a conflict of interest.

   e.  The problem with launching two investigations for the same loss is that it was in violation of AR 735-5, paragraph 13-25.  That paragraph states that either an AR 15-6 or a FLIPL will be conducted, but not both.  This appeal nicely highlights the flaws and obvious partiality with which the investigations were conducted.  They were both riddled with self-serving conflicts of interest that render them both completely unjust and not credible.  They ask the ABCMR to keep in mind that the negative OER was solely based on the results of these corrupt and self-interested investigations.  The OER was not signed until 120 days after the THRU date and only days before the AR 15-6 was complete.

   f.  The OSRB analyst pointed out, on more than one occasion, that the comments from the rater and SR on the OER are similar.  He points this out to rebut the argument that the SR was removed for improper command climate, mistreating subordinates, and undue command influence (thereby affecting the fairness of this OER).  However, this appeal presents sound evidence that the SR's removal for undue command influence is precisely why the rater's comments would have mirrored the SR's.  The evidence will show the SR was relieved for cause; there were orders to review his judicial, administrative, and personnel actions for the year prior to his relief; and that the applicant's OER fell within that window.

   g.  The OER is marred because of the results of one corrupt and self-serving AR 15-6 investigation.  Take away the AR 15-6 and you are left only with evidence of an excellent performance by a young captain (CPT) whose hallmarks throughout the rating period were consistency and dependability.



CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned in the Regular Army, as a second lieutenant, on 2 August 2007.  He was promoted to CPT on 1 September 2010.

2.  He received a "Change of Rater" OER for the period 27 October 2009 through 26 October 2010 for his duties as a Battalion S-6 for the Combined Arms Battalion (CAB).  The Battalion Executive Officer, in the rank of major, was his rater and the Battalion Commander, in the rank of LTC, was his SR.  The OER shows in:

   a.  Part IV (Performance Evaluation – Professionalism) the rater placed an "X" in the "No" in the Selfless-Service and Duty blocks.

   b.  Part IVb (Leader Attributes/Skills/Actions) the rater placed a "No" in the Mental, Conceptual, Interpersonal, Communicating, Developing, Decision-Making, Executing, Building, Motivating, and Assessing blocks.

	c.  Part Va (Performance and Potential Evaluation) the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block and entered the following comments:

[Applicant's] time as the CAB S-6 was marred by consistent failure to listen and learn from those around him.  Despite numerous verbal counseling sessions, often conducted at his request, in which I specifically told him that he had to listen to his NCOs and Soldiers.  [The applicant] has failed to heed any advice given to him or take any action to improve himself or his section.  He extended his lack of listening to his Soldiers and NCOs, as well, causing a caustic environment in his section in which [the applicant] felt his only recourse was to micro-manage his section into ineffectiveness.  While he is technically very competent, his leadership style has destroyed what was once a very effective section.  This became clear when talking to his Soldiers and NCOs after his section lost an SKL loaded with secret keys.  Though [the applicant] and his Soldiers and NCOs knew what the right actions were to secure and account for the equipment, they willingly failed to do so in a disciplined manner.  This failure stems from the applicant's micro-managing leadership style; since he did not conduct sensitive item accountability, the accountability did not take place.  I cannot recommend [the applicant] for any leadership position at this time, and recommend that he continue to serve in positions under a senior Signal Officer.

   d.  Part Vc (Comment on Potential for Evaluation), the rater entered the comment, "Without additional developmental time, the applicant's chances of success at the next rank are minimal.
   
Part VII (SR), the SR placed an "X" in the “Do Not Promote” block and entered the following comments:

[Applicant's] performance has been unsatisfactory.  His demonstrated lack of leadership and careless performance of his duties has resulted in the improper handling of cryptographic equipment and ultimately the loss of this sensitive military property.  The applicant's inability to lead and supervise has resulted in him losing the trust, confidence, and respect of his superiors and subordinates.  Do not promote this officer as additional leadership development and signal training is required in his current grade.  Assign him to a position where maximum supervision by a senior non-commissioned officer or field grade Signal Officer is available.

3.  He provided a copy of an AR 15-6 investigation, dated 5 October 2010, which shows the following:

   a.  The applicant was found responsible for failing to follow proper reporting procedures by failing to submit or ensure the submission of sensitive items accountability reports, failing to enforce the security of the container holding COMSEC items, his polices and orders contributed to and set the conditions for the theft to happen, and failing to ensure that his NCOs followed proper reporting procedures once he delegated the authority into the loss of an SLK.

   b.  The IO, the applicant's rater, recommended the applicant receive a General Officer Memorandum of Reprimand (GOMOR) and a Relief of Cause OER.  It was also recommended that Staff Sergeant Sxxxxxxx receive a field grade Article 15 with a reduction in rank to pay grade E-1 and the opportunity to retire from the Army in the rank of SGT, SGT Axxxxxx receive a field grade Article 15 with a reduction to pay grade E-1 and an administrative chapter from the Army, SGT Gxxxx receive a company grade Article 15 with a reduction in rank to pay grade E-4 (suspended), and Sergeant First Class Jxxxxx receive a Memorandum of Reprimand from the Brigade Commander.
   
   c.  On 15 February 2011, the appointing authority concurred with the findings, but not the recommendation regarding the applicant.  He stated neither a GOMOR nor a Relief for Cause OER was warranted.  Simple negligence, not misconduct led to the loss.  The applicant's security clearance was erroneously suspended at the national level.  He recommended the applicant's clearance be reinstated to provide the applicant the ability to perform daily duties as a communications officer.
4.  The OER was signed by the rater on 18 February, the SR on 22 February, and the applicant on 27 February 2011.

5.  He also provided copies of the following:

   a.  An Acknowledgment and Comments memorandum, dated 23 February 2011, wherein he stated his rater was appointed as an AR 15-6 IO concerning the loss of an SKL which allegedly contained a classified key.  His rater concluded that he was responsible for the loss of the equipment.  While he agreed that the SKL was missing, he disagreed that any Secret COMSEC material was missing.  He asked his rater about this, and the rater stated, "we can't prove that it wasn't, so we have to assume that it was."  His rater continued to state that assumption as a fact.  The Brigade COMSEC custodian suggested a way to prove or disapprove the fact, but was not included in the decision-making part of the investigation.  The AR 15-6 approving authority disapproved any recommendations of taking actions against him because of the incident.

   b.  A Letter of Referral, dated 28 February 2011, referring the contested OER for negative remarks.

   c.  An MFR, dated 22 March 2011, wherein the Brigade 1SG stated the applicant attempted to do everything he could to support the Battalion and build a competent S-6 shop.  Any issues that S-6 shop had was there prior to his arrival; these issues were something that he could not work through without assistance from a competent NCOIC—which he didn't have—and the Battalion leadership of the time would not provide him assistance or allow him to relieve the NCOIC that he had.

   d.  His appeal packet, dated 14 July 2012, which included 8 support statements dated between 2 March and 2 December 2011, wherein the individuals attested to the applicant's performance as an S-6 and that the officer described in the contested OER was not the officer they knew.
   
   e.  OSRB Appeal, dated 10 October 2013, wherein he was advised of the denial of his appeal and that he could either resubmit another appeal with additional evidence or make application with the ABCMR.
   
   f.  Two supporting statements from/dated:

		(1)  COL Fxxxxxxx Hxxxx, dated 22 January 2014, wherein he stated the following:  

			a.  There were many errors in the AR 15-6 as the IO was also the rater in the contested OER.  That showed an inappropriate amount of undue influence by the chain of command on the outcome of the investigation.  Given that the negative OER was signed days before the AR 15-6 was adjudicated and it made indirect reference to the ongoing investigation, it appears the chain of command decided to punish the applicant and his Soldiers regardless of the final decision.  That prejudice was one of the defined actions of undue command influence.

			b.  Another obvious error was the decision by the SR to appoint an additional FLIPL officer to investigate the same property loss as the AR 15-6.  AR 735-5, paragraph 13-3a(6) states that FLIPLs and 15-6s are required to be a single investigation.  AR 735-5, paragraph 13-8a, required such an investigation to be opened within 15 calendar days of the discovery of a loss.  The loss was discovered and reported by the applicant on 29 September 2010.  The AR 15-6 began on 30 September 2010.  LTC Pxxxx appointed CPT Txxxxx (one of his company commanders) as the FLIPL investigator on 21 October 2010, thereby missing the regulatory requirement in AR 735-5 by 7 days. This additional IO shared a flaw with the 15-6 IO; he was still a direct subordinate of the SR.  The SR was ultimately relieved for cause on the basis of abuse of authority.

		(2)  COL Hxxxxx, dated 5 February 2014, wherein he stated the following:

			a.  He was appointed by the AD CG to perform an AR 15-6 investigation into the alleged abusive behavior of a squadron commander (SCO) and the toxic command environment.  Evidnece led to the conclusion that throughout his time in command, the SCO treated Soldiers harshly.  The SCO was the applicant's SR for the OER being appealed.  It appeared that the SCO's objective was to have the applicant believed and GOMORed in preparation for a show-cause board; however, he could not gain support from the brigade commander.  He concluded that the applicant's OER was influenced by the SCO to support the foregoing personal actions.  

			b.  As a result, the investigation led him to highlight that the applicant's OER was subject to inappropriate command influence and therefore he recommended that his OER be reviewed.  In an attempt to right a wrong, he and the CG provided letters in support of the applicant's appeal.  The AR 15-6 recommended the command conduct a review of all administrative and non-judicial actions administered by the Squadron Commander over the previous year.  Not only did the applicant's OER fall into that window, he specifically mentioned his OER in his recommendation.

6.  AR 623-3 (Personnel Evaluation - Evaluation Reporting System) establishes the policies and procedures for the Army's Evaluation Reporting System.  The regulation states:

	a.  An OER accepted by Headquarters, Department of the Army (HQDA), and included in the official record of an officer, was presumed to had been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in an appeal of an OER rest with the applicant.

	b.  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.  Paragraph 1-10 specified except to comply with the regulation, no person could require changes be made to an individual's OER.  Members of the rating chain, appropriate administrative personnel office, or HQDA would point out obvious inconsistencies or administrative errors to the appropriate rating officials.  The regulation also provided the opportunity to request a Commander's Inquiry or to appeal referred/disputed reports.

   c.  Alleged errors, injustices, and illegalities in a rated Soldier’s evaluation report may be brought to the commander's or commandant’s attention by the rated Soldier or anyone authorized access to the report.  An appeal will be supported by substantiated evidence.

7.  AR 735-5 contains concepts and guidelines for establishing and maintaining the Command Supply Discipline Program (CSDP).  The regulation states in:

   a.  Paragraph 2-8a(1) – commanders are obligated to ensure all Government property within their command is properly used and cared for, and that proper custody, safekeeping, and disposition are provided.

   b.  Paragraph 2-8a(2) – the obligation of the supervisor is to ensure all Government property issued to or used by their subordinates is properly used and cared for, and that proper custody, safekeeping, and disposition are provided.  

   c.  Paragraph 13-2 – the purpose of the FLIPL is to document the circumstances concerning the loss or damage of Government property and serves as, or supports a voucher for adjusting the property from accountable records.  It also documents a charge of financial liability assessed against an individual or entity, or provides for the relief from financial liability.

   d.  Paragraph 13-25 -  There are five situations warranting an investigation performed per AR 15–6 in lieu of a financial liability investigation conducted under this regulation.  These situations occur when directed by other regulatory guidance, a commander, a financial liability investigation approving or appointing authority per AR 15–6, the loss or destruction involves a controlled item, night vision devices, and navigation systems (for example, Global Positioning System), and serial number changes for sensitive items will require the processing of a DD Form 200 and an AR 15–6.

8.  AR 600-8-104 (AMHRR Management) prescribes the policies governing the AMHRR Management Program and it composition.  The regulation states once a document is placed in the AMHRR it become a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.

DISCUSSION AND CONCLUSIONS:

1.  An AR 15-6 investigation found the applicant's policies and orders directly contributed to and set the conditions for the loss of a SKL.  His rater, the IO, and SR commented on the applicant's actions pertain to this loss in the contested OER.  The approving authority of the investigation, who was neither his rater nor SR on the OER in question (although he was the SR on his next OER) did not concur with the recommendations to issue the applicant a GOMOR and Relief for Cause OER as a result of the loss.  The approval authority stated, "Simple negligence, not misconduct led to the loss."  In the applicant's appeal of the OER, he admitted the SKL was lost.  

2.  Notwithstanding the applicant's and counsel's contentions, there is no evidence of record and insufficient evidence was provided to show this OER contains material error, is inaccurate, or is an unjust evaluation.  It appears this OER represents a fair analysis of the applicant at the time.  There is also no evidence and none was provided showing the OER was not processed in accordance with applicable laws and regulations.  In accordance with regulatory guidance there must be compelling evidence to support the removal or transfer of a properly-completed, facially-valid DA Form 2627 from a Soldier’s records.  

3.  There is further no evidence the AR 15-6 was flawed or unjust or that the applicant's SR specifically intended to harm him through the OER prior to his own relief.  As stated by the applicant's counsel, remove the AR 15-6 and you are left only with an excellent performance by the applicant.  However, the fact remains there was a loss of an SKL during this rating period.  As a senior officer, in a leadership position, it was his responsibility to ensure accountability.  Notwithstanding any other issues he contends the command was having, he has not shown that he did not contribute to the loss.  

4.  In accordance with AR 735-5, paragraph 2-8a(2), the applicant, as the supervisor, was responsible for ensuring all Government property was properly used and that proper custody and safekeeping was provided.
5.  AR 735-5, paragraph 13-24 states the appointing authority or the approving authority may direct an investigation according to AR 15-6, and paragraph 13-25 lists numerous instances where an AR 15-6 should or must be conducted along with a FLIPL.  In this case, a communication item was missing and an AR 15-6 investigation may have been required.  

6.  There is an insufficient evidentiary basis to support the requested 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)                                         AR20140003732



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ABCMR Record of Proceedings (cont)                                         AR20140003732


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