IN THE CASE OF:  	  

		BOARD DATE:  24 March 2015	  

		DOCKET NUMBER:  AR20140010267 


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 removal of a relief for cause officer evaluation report (OER), for the period ending 4 September 2013 (hereafter referred to as the contested OER), and a general officer letter of reprimand (GOLOR), dated                1 October 2013, from his Official Military Personnel File (OMPF).

2.  The applicant states:

   a.  In December 2013, he received a GOLOR in accordance with Army Regulation 600-37 (Unfavorable Information) as an administrative punishment.  However, he was not given access to his personnel records in the interactive Personnel Electronic Records Management System (iPERMS).  The applicant was supposed to receive access to his records via a compact disk (CD), but the noncommissioned officer charged to provide him the CD failed to do so.  The applicant believes it was an injustice that he was not provided the appropriate documentation in order to submit a proper rebuttal/defense.

   b.  Further, he contacted Trial Defense Services (TDS) to assist him with his rebuttal; however, he never heard from them.  Despite repeated follow-up attempts he was never given access to defense counsel and he informed the Arizona Army National Guard (AZARNG) as such.  Despite the absence of counsel, he was still issued a GOLOR.

   c.  The applicant requested to meet with the issuing authority and he was informed the general "didn’t feel it was necessary or there was anything he [the applicant] could add."  The fact that he was not given access to his personnel files for his rebuttal seems like something he could have added.  The applicant expressed his concern that a pre-decision had been made prior to the general officer receiving his rebuttal, and the applicant believes that it appears to have happened.

   d.  After receiving the GOLOR, he was presented with a relief for cause OER and ultimately given a settlement of resigning from the AZARNG or facing having his Federal recognition withdrawn.  After receiving no legal defense support, having a GOLOR placed in his OMPF, and without having access to his iPERMS records, he signed the resignation and the OER he was presented.  He believes based on his lack of iPERMS access the receipt of the GOLOR and OER is an injustice and he requests the documents be removed from his OMPF. 

3.  The applicant provides six pages of electronic mail (email).

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service, the applicant was appointed a Reserve commissioned officer of the United States on 12 December 2003.  On 6 April 2009, the applicant was appointed in the AZARNG in the rank/grade of captain/O-3.

2.  The applicant's record contains a GOLOR, dated 1 October 2013, in which the applicant was reprimanded for falsifying a document and submitting the fraudulent document through the chain of command in an effort to improperly obtain an increase in pay.  The letter noted the applicant intentionally and deceptively altered the legal opinion of an attorney from the National Guard Bureau and used the altered opinion to support the applicant's request for an upgrade in his technician grade.  The applicant forwarded the fraudulent legal opinion to the Human Resources Office and allowed the applicant's supervisor to argue on his behalf while unknowingly using a document that the applicant secretly altered.  He concealed his misconduct for over a year before it was discovered.  His actions were especially egregious because, as an attorney, he  owed the agency fiduciary duties arising from the position of trust that he occupied.

3.  The GOLOR was issued as an administrative measure and not as punishment under the provisions of Section 26-1015 of the Arizona Code of Military Justice (ACMJ).  The imposing officer informed the applicant that he would seek to have the applicant's Federal recognition as a commissioned officer withdrawn and he informed the applicant that he had 20 calendar days from the receipt of the GOLOR to submit any written matters in rebuttal.  He noted it was his intention to permanently file the letter in the applicant's OMPF but he would consider any rebuttal matters before deciding how the letter should be filed.

4.  The applicant submitted his 3-page response to the GOLOR on 15 December 2013.  On 7 February 2014, after a thorough review and consideration of the applicant's rebuttal, together with the relevant facts and evidence, the imposing authority decided to file the GOLOR in the applicant's OMPF.   The GOLOR is currently filed in the performance section of his OMPF.
   
5.  Records show the contested OER was a relief for cause report that covered               4 months of rated time while the applicant was serving as the administrative law attorney for the Office of the Staff Judge Advocate within the State of Arizona during the period of the contested report.  The contested OER was a referred report and the applicant indicated he did not wish to make rebuttal comments.

6.  In Part IV (Performance Evaluation - Professionalism) of the contested OER, the rater, gave "No" responses to the following questions in the areas identified:

* a (Army Values) item 2 (Integrity) and item 6 (Selfless-Service)
* b3 (Influencing) item 2 (Decision-Making), item 5 (Executing), and              item 8 (Building) 

7.  In Part V (Performance and Potential) of the contested report, the rater placed an "X" in block three (Unsatisfactory Performance – Do Not Promote).

8.  In Part Vb (Comment on Specific Aspects of the Performance) the rater stated, "[the applicant] demonstrates a willingness to take on complex legal issues and work them through to completion with little supervision.  Unfortunately, any accolades that [the applicant] receives for his motivation are diminished by his questionable integrity and failure to foster an ethical environment.  While seeking to have his dual-status technician position upgraded to a higher paying level, [the applicant] secretly altered the legal opinion of another attorney that had opined on whether the upgrade to [the applicant's] position was legally permissible.  [The applicant] then forwarded the written opinion to key decision-makers in the agency, intending that they rely upon the fraudulent document to upgrade his position and increase his salary.  [The applicant] continued to seek the upgrade for over a year and remained silent while the chain of command relied upon his secretly-altered document as support for the upgrade.  Through his continuing fraudulent activity, [the applicant] placed his own personal desires above the interests and priorities of the Army and this command.  His actions call his integrity into question and fall well below the level of professionalism expected from a member of the JAG Corps.  The [applicant] has completed an Army multi-source assessment and feedback as required by Army Regulation 350-1."

9.  In Part Vc (Comment on Potential and Promotion) the rater stated "[the applicant] has not demonstrated potential for promotion as an officer based upon questionable integrity and failure to foster an ethical environment."

10.  In Part VII (Senior Rater), the senior rater placed an "X" in block 3 (Do Not Promote) in Part VIIa (Promotion Potential).

11.  In Part VIIc (Comment on Performance/Potential) the senior rater stated, "Concur with comments of rater.  [The applicant] possesses initiative and drive.  His prior military experience helped him to perform in an environment that required independent work in a broad array of subject matters.  His good qualities, however, are greatly overshadowed by his demonstrated lack of integrity and judgment.  [The applicant] secretly altered the legal opinion of another attorney.  Moreover, he allowed other judge advocates in this office to rely on such opinion for more than a year while they argued on his behalf for an increase in the status of his position.  This conduct shows a level of integrity and judgment well below that expected of an officer and judge advocate.  [The applicant] did not submit a completed DA Form 67-9-1."

12.  The subject OER was subsequently processed by the U.S. Army Human Resources Command.  

13.  There is insufficient evidence to show the applicant ever requested a Commander's Inquiry (CI) be initiated on the contested report or that he initiated an appeal of the contested report.

14.  On 15 April 2014, the applicant resigned from the AZARNG and he was transferred to the U.S. Army Reserve (USAR).  On 21 January 2015, the applicant was honorably discharged from the USAR.

15.  The applicant provides several emails, dated 25 November 2013, which refer to his difficulty obtaining access to his personnel records and interaction with TDS. 

16.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).  This includes the DA Form 67-9.  

   a.  Paragraph 1-9 states Army evaluation reports are independent assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army's officer or noncommissioned officer corps.  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 4-7 states, in pertinent part, evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  
   
   c.  Paragraph 4-11 states, in pertinent part, 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.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions.  The burden of proof rests with the appellant.

   d.  Paragraph 4-13 states that for a claim of substantive inaccuracy, the appellant will state succinctly what is being appealed and the basis for the appeal.  The evidence must support the allegation.  The appellant needs to remember that the case will be reviewed by impartial board members who will be influenced only by the available evidence.  Their decision will be based their best judgment of the evidence provided.  Additionally, correcting minor administrative errors or deleting one official's rating does not invalidate the report.

17.  Army Regulation 600-37 provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made.

18.  A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with chapter 7 of Army Regulation 600-37.  Paragraph 7-2 (Policies and standards) 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 the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  There are no provisions in the governing regulation to automatically transfer a GOLOR based on elapsed time.

19.  Army Regulation 600-8-104 (Army Military Human Resource Records Management (AMHRR)) prescribes the policies and mandated operating tasks for the AMHRR Management Program.  It states that once placed in the OMPF, a document becomes a permanent part of that file.  The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested OER and GOLOR should be removed from his OMPF because he was not given access to his personnel records in iPERMS and he was unable to receive any legal defense support from TDS.  

2.  The evidence of record confirms the applicant, a JAG officer, received a GOLOR on 1 October 2013, for falsifying a document and submitting the fraudulent document through the chain of command in an effort to improperly obtain an increase in pay.  The GOLOR was issued as an administrative measure and not as punishment under the provisions of Section 26-1015 of the ACMJ.  The applicant was afforded the opportunity to review the evidence against him and to submit matters in his own behalf prior to a final filing decision.  His response was received and considered.  Subsequently, the GOLOR was referred for filing in his OMPF.

3.  The GOLOR was properly administered in accordance with applicable regulations and is properly filed in the performance section of his OMPF.  There is no evidence of an error or an injustice.  The applicant's contentions were considered; however, he provides insufficient evidence to support his claims.  
4.  With respect to the contested OER, the governing Army regulation clearly states an evaluation report included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly-designated rating officials who meet the minimum time and grade qualifications, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

5.  The applicant contends the OER should be removed because he claims he did not have access to a proper defense; however, this contention does not have merit.  The contested OER appears to be correct and appears to represent a fair, objective, and valid appraisal of the applicant's demonstrated performance and moral qualities during the period in question. 

6.  By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied 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.

7.  The applicant did not provide sufficient evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the OER under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20140010267





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ABCMR Record of Proceedings (cont)                                         AR20140010267



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