BOARD DATE:	  30 October 2014

		DOCKET NUMBER:  AR20140008856 


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 his previous request for removal of the relief-for-cause DA Form 67-9 (Officer Evaluation Report (OER)) for the period 30 July 2008 to 5 February 2009 (hereafter referred to as the contested OER) from his Official Military Personnel File (OMPF).

2.  The applicant states the entire report is unjust and completely unfounded.  He once again requests an appearance before the Board.  He feels he can best be served if he is able to address questions the Board may have as it pertains to his situation.  In his initial request, he felt the Inspector General (IG) investigation showing the wrongdoing of his chain of command would be enough to display the lack of character in his chain of command at the time and remove the contested OER.  He believes the additional evidence shows his chain of command lacked the integrity to justify a properly-written OER and clearly targeted him for bringing to light the wrongdoings of his chain of command.  As previously stated:

   a.  On or about 24 January 2009, he found out that his staff sergeant (SSG) platoon sergeant (male) had stayed at his [the 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 [the applicant] 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).  The applicant told the commander that she was in the wrong for conducting an illegal search of the squad leader's quarters.  The applicant met with the battalion commander and stated the same.  The battalion commander immediately relieved him for allowing fraternization in his platoon. 

   c.  The applicant states he will supply what he has available to him, but the investigations given to him under the Freedom of Information Act (FOIA) had several pages blacked out.  He appealed the redacted versions and received a denial for the unredacted versions from the Office of the General Counsel.  He claims the information 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 IG could not really help him with that because it was an administrative action and not a punitive action.  His only recourse was to appeal.

   d.  The applicant stated previously he is a year group 2007 Captain (CPT) currently being considered by the Officer Separation Board (OSB) which was to 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.  The contested 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 contested OER removed.  He looked to appeal under the provisions of Army Regulation 623-3 (Evaluation Reporting 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.

3.  The applicant provides:

* 2 DA Forms 4856 (Developmental Counseling Form)
* 6 memoranda
* 2 DA Forms 67-9 

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 AR20140003597, on 3 April 2014.

2.  The applicant submits counseling statements, memoranda, and an OER which were not previously reviewed by the Board.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's military record shows, having 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.

4.  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 contested OER is currently filed in the restricted portion of his OMPF.  The contested 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.

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

6.  The applicant provides his referred report comments, dated 6 May 2009.  His comments to the senior rater are entered as follows:

   a.  V - Rater Comments.  Under this block it states I "experienced numerous difficulties in confronting leadership issues with NCOs in his platoon…"  It also states that I have not ensured that my Soldiers' personal and professional concerns were dealt with appropriately.  This is all very vague and does not say what I did to cause me to be relieved.  However, I was told I relieved for allowing "fraternization in my platoon" and accused of "disobeying a lawful order."  Now that these accusations proved to be false I am being vaguely accused of doing things wrong that have no substantial backing.  It also states that I have an "inability to repair" I was never given any opportunities to repair anything.  I was immediately relieved for allowing "fraternization" because I did not agree that the fraternization occurred.  I can only assume that my "inability to repair" is due to my not agreeing with the command on this issue.  However, as the Commander's Inquiry (CI) proved, there was no fraternization that occurred in this situation.  The Soldier's [sic] in question were both the same rank and AR 600-20 [Army Command Policy] only addressed "Relationships between Soldiers of different rank."

   b.  VII - Senior Rater Comments.  Under this block it says that I was relieved "for being derelict in my duties and for failing to exercise proper judgment as it related to inappropriate relationships between senior leaders in my platoon."  Again, I was told I was relieved for allowing "fraternization in my platoon."  The Commander’s Inquiry conducted came back unfounded because the Soldiers are the same rank and they were only friends.  As stated above, AR 600-20 only addresses "Relationships between Soldiers of different rank."  Therefore, an inappropriate relationship never occurred.  However, the accusation of being derelict in my duties is false because I personally approached CPT S about the friendship between my platoon sergeant and squad leader a week or two prior to the incident and asked that my squad leader be moved to 3rd platoon.  Every regulation states that I handled the situation appropriately when dealing with a friendship of two enlisted Soldiers of the same rank.  So I was not "derelict in my duties" when I informed the command of the friendship and the necessity to move the squad leader.  So once again I am being vaguely accused of doing things wrong that have no substantial backing.

   c.  Army Regulation 632-3, paragraph 3-23, addresses "unproven derogatory information."  It clearly states that no unverified derogatory information can be entered on the OER.  As shown above, all derogatory information in the OER has no substantial backing and is completely unverified. 

7.  He provides a copy of a partially redacted Report of Investigation (ROI) which shows the relief-for-cause memorandum issued to him stated, in part, "on 27 Jan 09, CPT 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.

8.  The partially redacted ROI 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 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
* Paragraphs 4-14 through 4-16, Army Regulation 600-20, 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) ROI, 5 May 2009   

9.  The partially redacted ROI shows the applicant's commander took action against him based on a combination of being disrespectful, disobeying orders, and ultimately over the discovery that the applicant was aware of SSG P's plans to stay at SSG G's quarters during inaugural week.  It is also noted that there were other incidents involving the applicant which were considered.

10.  The partially redacted ROI 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.

11.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System – which includes the OER.  It also provides guidance regarding redress programs, including commander's inquiries and appeals.

   a. Paragraph 1-9 provides that 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 is 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, counseling forms, and as explained in other directives.  Potential evaluations are performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

   b. Paragraph 3-2 defines the role of the rating officials.  Rating officials have the responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest, fair evaluations of the Soldiers under their supervision.  On one hand, they must give full credit to the rated individual for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, Department of the Army selection boards, and career managers can make intelligent decisions.

   c. Paragraph 6-7 provides guidance on OER appeals.  It provides that an evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF is presumed to:

* be administratively correct
* have been prepared by the proper rating officials
* represent the considered opinion and objective judgment of the rating officials at the time of preparation

   d. Paragraph 6-11 provides guidance for the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It states the burden of proof rests with the appellant.  Accordingly, 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 and 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.

12.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states the performance folder 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.  

13.  Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the OMPF, 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 OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.
14.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration to remove the contested OER from his OMPF has been carefully considered.  Although the applicant requested a personal appearance hearing, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.  

2.  The applicant purports a lack of objectivity and fairness on the part of his rater and senior rater, based on his analysis of the circumstances leading to the statements contained in the contested OER.  He has attempted to refute what he believes to be the underlying events that formed the basis for the negative comments based on the findings of an IG investigation; however, the applicant has failed to provide convincing evidence that shows the contested OER fails to accurately reflect the valued judgments of his rating officials at the time the report was rendered, or that it fails to accurately portray his overall performance during the rating period.  

3.  The applicant appears to contend the contested OER should be removed from his OMPF because an IG investigation showed wrongdoing by his chain of command with regard to conducting an unlawful search of his squad leader's quarters which he believes indicates his chain of command lacked the integrity to justify a properly written OER.  However, there remains insufficient evidence and the applicant has not provided sufficient evidence to show that the ratings and comments listed on the contested report are inaccurate and unjust and/or not consistent with his demonstrated performance of duty during the rating period.  It appears the comments listed simply represent the considered opinions and objective judgment of the rating officials.  

4.  While careful consideration was given to the supporting documentation provided with his application in an attempt to shine a light upon the events surrounding the his relief, none of the documents provide clear and convincing evidence that his rater and senior rater's assessment was anything but their considered opinions and objective judgments of the applicant during the rating period.

5.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.  In this case, there is insufficient evidence the contested OER was unjust or untrue or inappropriately filed in the applicant's OMPF.

6.  In view of the foregoing, there is an insufficient basis to grant 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 to amend the decision of the ABCMR set forth in Docket Number AR20140003597, dated 3 April 2014.




      _______ _ 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)                                         AR20140008856





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ABCMR Record of Proceedings (cont)                                         AR20140008856



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