IN THE CASE OF:	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20140012072 


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 the rater and senior rater narrative comments from his DA Form 67-9 (Officer Evaluation Report (OER)) covering the rated period 2 June 2010 through 10 September 2011.

2.  The applicant states:
 
	a.  The OER did not accurately record the manner in which he performed his duties as a company commander.  It was based on personal feelings and not his performance during the rating period.

	b.  The OER was the basis for a "show cause" board which subsequently recommended his separation from the Army.

	c.  He disagrees with the Officer Special Review Board's (OSRB) conclusion that there is no right to a commander's inquiry (CI).  Army Regulation 623-3 (Evaluation Reporting System), paragraph 4-3, states commanders are required to look into alleged errors, injustices, and illegalities in evaluation reports.  He should have sent his request for a CI to the commander above his brigade commander because the commander was his senior rater.  His senior rater denied his request for a CI.  Because the inquiry must be made by a commander in the chain of command above the designated rating officials involved in the allegations, the commander (his senior rater) should have forwarded his request to the post commander, as he is the commander above the designated rating officials.  The CI would have revealed the OER was biased in nature and that all the negative comments were not justified or supported and would have been removed or corrected.  The administrative error was already corrected and the inquiry would have revealed that the battalion command sergeant major and executive officer were the ones who recommended he handle the situation the way he did.  Also, the inquiry would have shown that the OER made reference to unproven derogatory information which was the domestic dispute incident.  At the time of the OER he was only accused, not convicted.  Later, he was absolved of all charges.  His character-reference letters support that he did not have a tough time in command and that he did remain mission focused.

	d.  The rater and senior rater narrative comments are misleading and untrue.  For example, his rater states he displayed poor decision-making pertaining to Soldier administrative actions.  The rater makes it sound as if he made a number of poor decisions, when in fact there was only one action that raised the concern of the command.  This was a Soldier who came up positive on a urinalysis.  He did not process a separation action as quickly as his chain of command thought he should have while the Soldier was still in his unit.  Therefore, his rater viewed him as making a poor decision.  In fact, he provided the Soldier's gaining command information about him and that unit made the decision to retain the Soldier.  He submits this was not poor decision making at all.

	e.  His senior rater lumped this one administrative action in his comments by stating the applicant had a number of transgressions, again misleading the reader to believe there were a large number of mistakes on his part.  There was only one identified concern which was resolved favorably for the Soldier and his gaining unit.

	f.  The bigger issue pertained to the domestic dispute incident that both of his raters were quick to consider as misconduct for purposes of his OER.  However, he was absolved of the baseless allegations made by his accuser after the rating period ended.  He understands his raters are not required to submit anything further for this OER upon learning of a favorable outcome.  This is why he is appealing this OER.  He has no other way of making this favorable information known.  The fact he was exonerated of the allegations that were made during the rating period should make a difference to his raters if they are to make a fair and accurate assessment of his performance and potential.  This essential additional information should matter to anyone assessing his career and his future value to the Army.  Unfortunately, this OER is the reason why there was a "show cause" board.

3.  The applicant provides:

* memorandum in support of his petition
* OER in question
* OER appeal with enclosures
* OSRB response
* Board of Inquiry (BOI) findings
* witness statements

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Army National Guard, the applicant was commissioned as a second lieutenant in the U.S. Army Reserve on 23 July 2004.  He was ordered to active duty on 24 August 2004.  He was promoted to captain on 1 October 2007.

2.  Records show he was arrested by civil authorities on 16 November 2010 for simple battery and family violence battery.

3.  He provided a letter from his civil attorney, dated 7 December 2011, which states:

* the applicant was arrested on the charge of simple battery but has not been arraigned on that charge
* that office believes that ultimately this case will be dismissed although they cannot offer a guarantee
* that office has resolved the civil matters involving paternity and child support which were the subject of possible reports made to the applicant's unit by a female

4.  On 30 January 2012, he received an extended annual OER for his duty performance as a company commander.  This report covered the period 2 June 2010 through 19 September 2011.

	a.  In Part Va (Performance and Potential Evaluation – Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed a mark in the "Satisfactory Performance, Promote" block.  In Part Vb (Performance and Potential Evaluation – Comment on Specific Aspects of the Performance), the rater stated:

[Applicant] has displayed adequate performance during this rating period, but his ability to command his company was disrupted by his involvement in a domestic dispute incident and displaying poor decision-making pertaining to Soldier administrative actions.  Despite these personal obstacles, [Applicant's] operational knowledge and calm demeanor enabled him to lead his company to produce over 700 25U Signal Warriors that were trained and ready to make an immediate positive impact to their first unit of assignment.  Through [Applicant's first name] pursuance in setting and maintaining Physical Readiness Training (PRT) standards, his company increased their EOC [end-of-cycle] APFT [Army Physical Fitness Test] first time pass rate to over 90%.  [Applicant's] consistent concern and care for Soldiers enabled his company to earn the 15th Regimental Signal Brigade 115-Day DUI [driving under the influence] & Drug-Free Streamer and reduce the number of AWOLs [absent without leave] to zero.  [Applicant] can have a promising career in the United States Army, but must first get his personal affairs on track so as to not adversely impact his proficiency to lead and make effective decisions.

	b.  In Part VIIa (Senior Rater – Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed a mark in the "Fully Qualified" block.  In Part VIIc (Senior Rater – Comment on Performance/
Potential), the senior rater stated:

[Applicant's] performance during this rating period has been satisfactory.  [Applicant] at times has struggled to perform as expected.  He has had a number of transgressions during his first year in command that distracted him from devoting his full attention to command.  Despite these setbacks [Applicant] has increased the realism and relevancy of training for his Soldiers, as well as incorporated training to strengthen their expectations of the Operational Army.  [Applicant's] future potential is unlimited once he reestablishes his priorities.  Promote to Major and send to ILE [intermediate level education] with peers.

5.  The contested OER was referred to the applicant for acknowledgement.  He submitted the following comments on 30 January 2012: 

	a.  The rater's narrative comment, "[Applicant] has displayed adequate performance during this rating period, but his ability to command his company was disrupted by his involvement in a domestic dispute incident and displaying poor decision-making pertaining to Soldier administrative actions.  Despite these personal obstacles…" is in violation of Army Regulation 623-3.

	b.  The senior rater's narrative comment, "He has had a number of transgressions during his first year in command that distracted him from devoting his full attention to command," is also in violation of Army Regulation 623-3.

	c.  Army Regulation 623-3, paragraph 3-23, states no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  The regulation further states the report cannot include charges or incidents of which the rated individual may later be absolved.  The commander made specific comments to his involvement in a domestic dispute.  The domestic dispute incident is a case still pending final resolution.

	d.  The derogatory comments in the OER were later contradicted by the commander in the OER write up.  For example, in the rater comments the commander writes that he went above and beyond his duty to increase EOC AFPT first time pass rate to over 90%, his company earned the 115 day DUI & Drug Free streamer twice, and AWOLs were reduced to zero while he was in command.  He also completed his master's degree in Information Technology Management.  These two statements are contradictory in nature to the initial comment of his command focus and attention.  On the contrary, his comments reflect the actions of a commander who is accomplishing the mission, not of one whose abilities have been disrupted.

	e.  Minus the comments in violation of Army Regulation 623-3, paragraph 
3-23, this would be a strong and competitive OER.  The OER as currently written most definitely would hinder future consideration for promotion as the Army shrinks its footprint.

6.  Records show the applicant requested a CI in April 2012.  On 6 April 2012, the brigade commander (and his senior rater) denied his request for a CI, indicating the OER "stands as a synopsis of your performance while in command from your rater and senior raters perspective.  If you feel your OER is in error I recommend taking your appeal to the board of corrections."

7.  Records show in July 2012 the State recommended an entry of nolle prosequi be made in the applicant's civil case for the following reasons:

* the reporting deputy and emergency medical personnel could not find any injury to the victim
* the party's post-incident behavior destroyed any jury appeal in the matter
* the applicant completed counseling through the military

8.  In July 2012, the applicant petitioned the OSRB to remove the unfavorable narrative comments from the contested OER.  On 17 January 2013, the OSRB denied his request and determined the overall merits of his case did not warrant the requested relief.  In the record of proceedings, the OSRB concluded the applicant had no right to a CI.



9.  On 23 September 2013, a BOI found:

	a.  during the period 2 June 2010 through 10 September 2011, the applicant did struggle to perform his duties as a company commander resulting in a referred OER which was filed in his official military personnel file (OMPF);

	b.  the applicant did commit misconduct, moral or professional dereliction, by the use of domestic violence and adultery; and

	c.  the applicant did commit conduct unbecoming an officer by the same domestic violence and adultery.

10.  The BOI recommended the applicant's separation from the Army with an honorable discharge.  The approval authority approved the Board's findings on 24 October 2013.

11.  On 6 March 2014, the Department of the Army Board of Review for Eliminations recommended the applicant's involuntarily elimination from the Army based on misconduct and moral or professional dereliction with an honorable discharge. 

12.  On 3 April 2014, he was honorably discharged for unacceptable conduct.

13.  Army Regulation 623-3 states an evaluation report accepted by Headquarters, Department of the Army (HQDA), and 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, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Requests that an evaluation report in a Soldier's OMPF be altered, withdrawn, or replaced with another report will not be honored.  The regulation also states the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly establishes that:

	a.  the presumption of regularity will not be applied to the report under consideration and

	b.  action is warranted to correct a material error, inaccuracy, or injustice.

15.  Army Regulation 623-3, paragraph 3-23, states that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to HQDA.  It states any verified derogatory information may be entered on an evaluation report.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated Soldier is under investigation or on trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain’s reference to verified derogatory information.  For example, when an interim report with verified information is made available to a commander, the verified information may be included in an OER.  For all reports, if previously-reported information later proves to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the report.

16.  Army Regulation 623-3, section I (Managing the Redress Program), paragraph 4-2, states, "Rated Soldiers may seek an initial means of redress through a [Commander's] or Commandant's Inquiry; however, a [Commander's] or Commandant's Inquiry is not a prerequisite for the submission of an appeal."

17.  Army Regulation 623-3, section II (Commander's or Commandant's Inquiry), paragraph 4-3, states, "[Commanders] (OER and noncommissioned officer evaluation report) or commandants (academic evaluation report) are required to look into alleged errors, injustices, and illegalities in evaluation reports."

18.  Army Regulation 623-3, paragraph 4-5 (Policy), states the inquiry will be made by a commander in the chain of command or military school commandant above the designed rating officials involved in the allegations.  In headquarters and other military organizations lacking a commander or commandant, the inquiry will be conducted by the next higher official in the rating chain above the designated rating officials involved in the allegations.

19.  Army Regulation 623-3, paragraphs 6-3 and 6-4, state the primary purpose of a CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated Solder and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.  However, in these after-the-facts cases, this paragraph is not intended to be a substitute for the appeals process which is the primary means of addressing errors and injustices after they have become a matter of permanent record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the narrative comments by the rater and senior rater on his 2010/2011 OER should be removed because they are misleading, untrue, biased, based on personal feelings, and do not reflect his performance during the rated period.

2.  He also contends the OER did not accurately record the manner in which he performed his duties as a company commander.

3.  In order to justify amendment of a report, the burden of proof rests with the applicant to produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity should not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

4.  The evidence of record supports the applicant's disagreement with the OSRB's conclusion that there is no right to a CI.  The governing regulation states rated Soldiers may seek an initial means of redress though a CI and commanders are required to look into alleged errors, injustices, and illegalities in evaluation reports.  It appears that his request for a CI should have been forwarded to a commander in the chain of command above the designated rating officials involved in the allegations.  Nevertheless, given the facts of the case, there is no evidence to suggest an investigation would have concluded the OER was biased in nature and/or the comments were not justified or supported.

5.  Although he contends the OER made reference to unproven derogatory information (the domestic dispute incident), the evidence of record shows he was, in fact, arrested on 16 November 2010 for simple battery and family violence battery.  The State recommended an entry of nolle prosequi resulting in no further pursuit of the case against the applicant.  However, the governing regulation states verified derogatory information may be entered on an evaluation report.

6.  His remaining contentions were carefully considered.   However, the applicant has not provided sufficient evidence to show the rater and senior rater narrative comments on the OER accepted by HQDA did not represent the considered opinion and the objective judgment of the raters at the time of preparation.  Therefore, there is insufficient evidence on which to base amending the contested OER.

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 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)                                         AR20140012072



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ABCMR Record of Proceedings (cont)                                         AR20140012072



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