IN THE CASE OF:  	  

		BOARD DATE:  9 October 2014	  

		DOCKET NUMBER:  AR20140009717 


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, the removal of an officer evaluation report (OER) ending on 30 June 2011 from his Official Military Personnel File (OMPF). 

2.  The applicant states, in effect, that the OER ending on 30 June 2011 was his first OER as a second lieutenant and it is incorrect.  The OER states he was pulled over for driving under the influence (DUI), in which case he was not.  The arresting officer had made several false arrests, and he was one of them.  The OER has prevented him from being promoted to the rank of captain for the 2010 year group and placed him in the elimination process from the Army.  He was considered for elimination and his entire chain of command supported his retention.  At this point the OER is the only thing preventing him from continuing to have a successful career. 

3.  The applicant provides a list of supporting documents provided with his application on page five of his application.

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 was commissioned as a Regular Army second lieutenant on   22 May 2010 upon graduation from the United States Military Academy at West Point, New York.  He completed the Military Police (MP) Officer Basic Course and was transferred to Fort Stewart, Georgia for his first assignment.

3.  On 25 January 2011, the applicant was issued a Memorandum of Reprimand by the Commanding General (CG) for DUI.  The reprimand indicates that on 
1 January 2011 the applicant was stopped at a DUI checkpoint in Garden City, Georgia and his blood alcohol content was .144.  Accordingly, he was cited for DUI.  The applicant was afforded 5 days to rebut the reprimand.

4.  On 12 February 2011, the CG directed that the reprimand be filed in his local file for 36 months or until he transferred to another general court-martial jurisdiction.

5.  The applicant was promoted to the rank of first lieutenant on 22 May 2011.

6.  The contested OER covers the period 20101111 – 20110630 while assigned to an MP Battalion as an assistant S-3.  In Part IV, under Performance Evaluation – Professionalism, the applicant received a “No” rating under “Decision Making.”  He received “Yes” ratings in all of the remaining categories.

7.  In Part V, under Performance and Potential Evaluation, his rater gave him a rating of “Satisfactory Performance – Promote.”  The rater’s comments indicate that the applicant’s successful performance was overshadowed by his serious lapse in decision making while off duty.  He was arrested by Garden City police for DUI at a traffic stop on New Year’s Eve. 

8.  In Part VII, the senior rater gave the applicant a “Fully Qualified” rating and indicated in his comments that, unfortunately, the applicant displayed extremely poor decision-making which resulted in an off-post legal proceeding resulting from his driving after consuming alcohol above the legal limit for BAC in Georgia.  The OER was referred to the applicant.

9.  On 9 September 2013, a memorandum was dispatched from the U.S. Army Human Resources Command (HRC) to the applicant informing him that the Fiscal Year (FY) 2013 Captain, Army Competitive Category Promotion Selection Board had identified him to show cause for retention on active duty because of misconduct, moral or professional dereliction.

10.  The applicant submitted a request for retention on active duty and stated that he made no excuses for the poor decision he made 3 years ago but that he had learned from his mistakes.  His chain of command supported his request and the CG recommended that he be retained on active duty.

11.  On 17 May 2014, the CG of HRC approved the recommendation to terminate the show-cause proceedings and retain the applicant on active duty. 

12.  There is no evidence in the available records to show that he ever applied to the Officer Special Review Board (OSRB) to have the OER removed.

13.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures and serves as the authority for preparation of the OER.  It provides that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly-designated rating officials and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Each report must stand alone.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored. 

14.  Army Regulation 623-3 also provides that the burden of proof in an appeal of an OER rests with the applicant.  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.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the contested OER should be removed because it states he was pulled over for DUI but in fact he was not has been noted and appears to lack merit.

2.  The contested OER clearly states that the applicant had a BAC that exceeded legal limits for the State of Georgia.  He provides no evidence to show the arresting officer made a false arrest.  Therefore, it appears that something happened on the night in question.  Additionally, the applicant admitted to having made a poor decision in his appeals.   

3.  In any event, the applicant has provided no evidence to support his contentions in regard to his DUI offense.

4.  Additionally, the applicant failed to show sufficiently convincing evidence to indicate the report was not prepared by the properly-designated rating officials or did not represent the considered opinions and objective judgment of the rating officials at the time of preparation.

5.  Accordingly, there appears to be no basis to remove the report from his official records.

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)                                         AR20140009717





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ABCMR Record of Proceedings (cont)                                         AR20140009717



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