IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140009511 


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 his DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 7 February 2009 through 6 February 2010 from his Official Military Personnel File (OMPF).

2.  The applicant states:

	a.  On 6 May 2010 he received a referred OER for the rating period 7 February 2009 through 6 February 2010.  During this rating period he performed duties as a civil affairs team leader while assigned to Fort Bragg, NC.  Much of the period was devoted to training, mission analysis, and preparation for the upcoming rotation to Central America.

	b.  He already received an OER on 19 March 2009 covering the period he was deployed to Afghanistan from 1 September 2007 through 2 February 2009.

	c.  The referred OER is unjust because it speaks of a period prior to the rating period covered by the OER.

	d.  His appeal is simple:  the behavior and actions illustrated in the referred OER did not happen during the rating period.  His senior rater leads his comments with "During this rated period, [Applicant] violated CENTCOM [U.S. Central Command] General Order #1."  The behavior the senior rater referenced did not happen during the rated period.  He redeployed from Afghanistan on 6 January 2009 prior to the beginning of the rating period.  He was never deployed to CENTCOM during the rating period (7 February 2009 to 6 February 2010).

	e.  The entire evaluation reflects the poor decision he made during his previous rating period and with little mention of the time period for which he should have been rated.

	f.  Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-20, states no remarks about nonrated periods of time or performance or incidents that occurred before or after the rating period will be made on an evaluation report except "Relief for Cause [RFC]"…APFT [Army Physical Fitness Test]…WTU [warrior transition unit]."

	g.  His command kept him assigned as a team leader and waited for his annual evaluation since his actions did not warrant an RFC OER.

	h.  His senior rater directed a checkmark of "No" for the “Conceptual” skill in Part IV (Performance Evaluation – Professionalism) of the OER.  This decision was based solely on the general officer memorandum of reprimand (GOMOR), not actions that occurred during the rating period.

3.  The applicant provided a copy of his OER appeal.

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the U.S. Army Reserve (USAR), the applicant was appointed as a Reserve officer in the USAR in the rank of second lieutenant on 15 December 2001.

2.  He entered active duty on 12 January 2002.  He served in Iraq from 27 February 2003 to 28 February 2004.  He was promoted to captain on 1 May 2005.  He served in Afghanistan from 10 August 2008 to 11 January 2009.

3.  On 18 December 2009, he received a GOMOR for poor leadership, dereliction of duty, and conduct unbecoming an officer while assigned to Afghanistan during the period 1 November 2008 to 10 January 2009.  The memorandum states the applicant consumed alcohol and allowed members of his team to consume alcohol which was a direct violation of CENTCOM General Order Number 1B.

4.  The contested OER is a 12-month annual OER covering the period 7 February 2009 through 6 February 2010 for duties as a civil affairs team leader for the 98th Civil Affairs Battalion (Airborne), Fort Bragg, NC.  This OER was authenticated by the rater on 5 May 2010, the senior rater on 6 May 2010, and the applicant on 6 May 2010.  Part IId (This is a referred report, do you wish to make comments?) of the OER is marked and further shows an "X" in the "No" block.

5.  In Part IV, the rater placed an "X" in the "No" box for Conceptual.

6.  In Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His Potential for Promotion), the rater placed an "X" in the "Other" block and entered the following comments in Part Vb (Comment on Specific Aspects of the Performance):

During this rating period [Applicant] displayed sound knowledge of Civil Affairs Operations.  His accomplishments included successful graduation from the Mobile Force Protection Course (Gryphon Group); maintaining 100% accountability of all assigned equipment through the development of an asset-visibility format and the development of a Civil Affairs engagement plan for Civil Military Support Element (CMSE) Central America (CENTAM).  Regrettably, [Applicant] was knowingly negligent in his leadership duties as Team Leader, as evidenced by his failure to enforce the standards while deployed to Afghanistan in support of OEF-XII from October 2008 to January 2009.  [Applicant] demonstrated poor leadership by consuming alcohol, which is in violation of General Order #1; this policy states the prohibition of alcohol consumption while deployed in the CENTCOM area of focus.  Willfully disobeying this order, [Applicant] consumed alcohol and allowed members of his team to do the same.

7.  In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Other" block and entered the following comments in Part VIIc (Comment on Performance/Potential):

During this rated period, [Applicant] violated CENTCOM General Order #1.  Neglectfully, [Applicant] consumed alcohol and allowed members of his team to do the same without thinking of the negative future consequences.  As Team Leader, [Applicant] was entrusted with the safety and welfare of his team, which he failed to do so.  Reserve his promotion for Major for further development as a leader.  He will better serve with the Civil Affairs General Purpose Forces, but should not return to USASOC [U.S. Army Special Operations Command].

8.  On 1 October 2012, he was honorably discharged for non-selection for permanent promotion.  On 2 October 2012, he was appointed as a Reserve officer in the USAR in the rank of captain.

9.  In May 2014, he appealed the referred OER.  However, his appeal was returned without action because it was not received within a timely manner (within 3 years of the "THRU" date of the OER).

10.  A review of the applicant's OMPF in the integrated Personnel Electronic Records Management System revealed a copy of the OER in question.

11.  Paragraph 3-20 (Prohibited Comments) of Army Regulation 623-3 states no remarks about nonrated periods of time or performance or incidents that occurred before or after the rating period will be made on an evaluation report except:  (1) RFC evaluation reports, (2) when the most recent APFT performance or profile data occurred prior to the beginning date of the report but within 12 months of the "THRU" date, or (3) when a Soldier assigned to a WTU is assigned under a valid rating chain and receives an evaluation report with a nonrated code "G."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and appear to have merit.

2.  The governing regulation states remarks about incidents that occurred before or after the rating period are prohibited on evaluation reports except for RFC OERs or matters pertaining to APFT or WTU.

3.  The evidence shows the applicant received a 12-month annual OER for the period 7 February 2009 through 6 February 2010 which contains bullet comments from his rater and senior rater pertaining to an incident that occurred in Afghanistan prior to the rated period.

4.  Based on the foregoing, it would be appropriate to expunge the referred OER from the applicant's OMPF.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by expunging the OER for the period 7 February 2009 through 6 February 2010 from his OMPF and replacing it with a memorandum for the nonrated time.



      _______ _   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)                                         AR20140009511



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ABCMR Record of Proceedings (cont)                                         AR20140009511



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