IN THE CASE OF:	 

		BOARD DATE:	    7 October 2014

		DOCKET NUMBER:  AR20140016240 


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 the removal of two DA Forms 67-9 (Officer Evaluation Report (OER)) from his official military personnel file (OMPF):

* Relief for Cause (RFC) OER covering the rating period 12 July 2012 through 21 February 2013 (hereafter referred to as contested OER-1)
* Senior Rater Option (SRO) OER covering the rating period “1” February 2013 through 22 August 2013 (hereafter referred to as contested OER-2) 

2.  The applicant states:

	a.  On 21 November 2012, his unit initiated an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) investigation.  The investigating officer (IO) attempted to persuade his wife to file criminal charges against him to the point that she emailed him (the applicant) about it.  The allegations were unsubstantiated, but the IO found Government Travel Charge Card (GTCC) misuse.  The Card Swipe report contradicted the IO's findings. Despite his requests, the report was withheld from him until June 2013.  All his GTCC use was reported within the unit and with the unit's travel approval authority point of contact.  His Senior Rater criticized him for providing his rebuttal to the investigation and invoking his Article 31 rights.  

	b.  On 12 March 2013, he was shown a one-page General Officer Memorandum of Reprimand (GOMOR) but no enclosures.  On 25 March 2013, he responded, in part, that he did not see the enclosures.  On 9 April 2013, Army Knowledge Online (AKO) notified him that over 100 pages have been uploaded into his OMPF, including the GOMOR, new documents, and unsubstantiated allegations.  The OMPF filing recommendation listed a wrong squadron commander as his commander.  The OMPF showed that the IO changed the   AR 15-6 documentation after his January 2013 rebuttal.

	c.  His rating chain was changed without his knowledge on contested OER-1. His unit S-1 simply overrode the old rating scheme with a new one on a monthly basis.  In August 2013, he received contested OER-2 for the rating period “20130201” through 20130822 where his rating chain was corrected.  In both OERs, his Senior Rater recommended retention.  In August 2014, he received a notification that the signed OER, rating period “20130201” through 20130822, had its date changed.  

	d.  In April 2014, he faced a unit-initiated Board of Inquiry (BOI) for the GTCC misuse.  Since his military email account was deleted and his Defense Travel System (DTS) access was removed, this undermined his ability to defend himself.  His military email access was restored after the BOI.  In July 2014, he was able to find the BOI rebuttal email evidence and Promotion Review Board (PRB) and Central Clearance Facility messages from November 2013.  The unit explained that it deleted his dot mil email account because his clearance was suspended.  The unit did not restore his dot mil email access after his clearance was granted in December 2013.

	e.  He has served honorably for 18 years and he coordinated all his GTCC use within the unit.  He believes that all the actions taken against him have been procedurally incorrect and substantively inequitable.

3.  The applicant provides:

* Self-authored brief
* Officer Record Brief
* Multiple DA Forms 4856 (Developmental Counseling Statement)
* Multiple cardholder statements
* Comments regarding the RFC OER
* Comments regarding the AR 15-6 investigation
* DA Form 67-8-1 (OER Support Form) and the two contested OERs 
* Multiple email exchange with various individuals
* Applicant's wife's statement (recant)
* GOMOR filing recommendations
* Office call with Senior Rater
* U.S. Army Human Resources Command (HRC) appeal return without action memorandum
* Multiple DA Forms 2062 (Hand Receipt/Annex Number)
* Multiple DA Forms 3161 (Request for Issue or Turn-In)
* Multiple DA Forms 3645-1 (Asymmetric Organizational Clothing/Equipment Record)
* Multiple other OERs throughout his service
* Multiple letters of recommendation and/or statements of support

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 14 May 1996.  He entered active duty on 27 October 1996.  

2.  He served in a variety of stateside and/or overseas assignments, including Bosnia, Iraq, and Afghanistan, and he was promoted to major (MAJ) on 1 August 2006. 

3.  He was assigned as the Director of the Asymmetric Operations Working Group (AOWG), D Squadron, Asymmetric Warfare Group (AWG), Fort Meade, MD.  

4.  During November 2012, an IO was appointed to investigate allegations of adultery, domestic violence, and improper use of government funds against the applicant.  

	a.  The IO found, based on the preponderance of the evidence, the applicant did improperly use government funds in violation of Article 92 (failure to obey order or regulation) of the Uniform Code of Military Justice (UCMJ).  The IO also determined there was insufficient evidence to support allegations of adultery or domestic violence although there was sufficient evidence to show violation of Article 107 (false official statements) and Article 121 (larceny and wrongful appropriation) of the UCMJ. 

	b.  The IO recommended the applicant be relieved from his duties within the AWG and that he receive a letter of reprimand.

	c.  the Command Judge Advocate reviewed the findings and recommendations and found the report of investigation legally sufficient.  He opined that he had no legal objection to the findings and recommendations and that the IO's findings were supported by the evidence discovered and the recommendations were consistent with those findings. 

	d.  The appointing officer approved the findings and recommendations.  
5.  On 8 March 2013, he was reprimanded by the Commanding General (CG), U.S. Army Military District of Washington for misusing his government travel charge card and claiming entitlements to which he was not permitted.  He had made and continued to make over 50 local purchases worth more than $3,000 in and around his home even after being counseled not to do so by his squadron commander.  Further, he wrongfully accepted money from the government by filing travel vouchers claiming per diem during days in which he was no longer in a temporary duty status.  

6.  On 12 March 2013, he acknowledged receipt and submitted a rebuttal to the GOMOR.  His chain of command, at all levels, recommended filing the GOMOR in his OMPF.

7.  On 10 April 2013, after careful consideration of the applicant's case, his rebuttal, and the chain of command recommendations, the imposing officer ordered filing of the GOMOR in the applicant's OMPF.  The GOMOR is currently filed in the performance folder of his OMPF.

8.  Meanwhile, during February 2013, he received contested OER-1, an RFC OER which covered 5 months of rated time from 12 July 2012 through 21 February 2013 for his duties as AOWG Director.  The total period is 7 months but only 5 months is rated and Code "Z" is used for the non-rated months.  His rater was Lieutenant Colonel (LTC) MR, the Squadron Commander, and his Senior Rater was Colonel (COL) PM, the Group Commander.  OER-1 shows in:

	a.  Part II(d), an "X" is placed next to the question "This is a referred report, do you wish to make comments?" and another "X" is placed next to the answer "Yes, comments are attached." 

	b.  Part  IVa (Army Values) and Part IVb (Leader Attributes/Skills/Actions), the Rater placed an "X" in the "No" blocks for "Integrity," Selfless Service," and "Duty" values. 

	c.  Part IV(b) (Leader Attributes/Skills/Actions), the Rater placed an "X" in the "No" block in the "Mental" attribute, "Conceptual" competence skill, and the "Decision-Making" leadership action.  

	d.  Part Va (Performance and Potential Evaluation (Rater) - Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the Rater placed an "X" in the "Unsatisfactory Performance – Do Not Promote" block, and entered the following comments:

Relief for Cause was directed by the rater, LTC xxxxxxxx.  [Applicant] was removed from his duties as the AOWG Director due to a loss in confidence in his judgment due to his chronic misuse of his assigned Government Travel Credit Card.  [Applicant] successfully directed the AOWG during the rated period.  His achievements include overseeing the development of an evolution of the Vulnerability Assessment Method (VAM) computer application that weighted vulnerabilities and friendly element actions to provide increased fidelity of outcomes for operational planning teams and a gesture driven, interactive Vulnerability Assessment Method (VAM) that has the potential to show real time effects of friendly element actions.  [Applicant] set the conditions for the transition of the AOWG cycles to a NIPR and SIPR cloud in an effort to increase the efficiency of the process and to facilitate remote operations. Additionally, for the AOWG Cycle 7, [Applicant] coordinated the efforts of a highly prolific Subject Matter Expert Gray cell which consisted of multiple retired flag officers as well [as] renown[ed] academics that produced more articles than any other AOWG cycle.  The rated officer has completed or initiated a Multi-Source Assessment and Feedback (MSAF) 360 as required by AR 350-1 [Management of Army Individual Training Requirements and Resources].

	e.  Part Vc (Comment on Potential for Promotion), the Rater entered the comment: "Effective at his current grade."  

	f.  Part VIIa (Senior Rater - Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Do Not Promote" block and a second "X" in the "Yes" block to indicate he senior rated 31 officers of this grade (at the time) and that a DA Form 67-9-1 was received with this report and considered in his evaluation and review.

	g.  Part VIIb (Potential Compared with Officers Senior Rated in the Same Grade), the senior rater listed three future assignments for which the applicant was best suited, rated the applicant as "Below Center of Mass" and entered the following comments in Part VIIc (Comment on Performance/Potential):

[Applicant] is a highly intelligent, talented and aggressive officer.  During this rating period, however, he was not honest in word and deed, and repeatedly exhibited questionable judgment and a lack of responsibility.  The most significant example of this was his flagrant misuse of his Government Travel Credit Card.  As a result, he was relieved from his position as the AOWG Director.  [Applicant] is a capable officer who generally performed within expectations.  His leadership, when focused on the mission, is effective.  Retain for continued service if allocations allow.

9.  On 15 May 2013, his Senior Rater referred the contested OER to him for comments.  He acknowledged receipt and submitted a response on 21 May 2013 wherein he stated:

* the rating period was incorrect; the correct dates should be 20120712 through 20121216 instead of 20120712 through 20130221 
* the rating chain was incorrect; it appears to have been changed as the investigation was pending
* the contested OER-1 is prohibited from listing information outside the rating period 
* the rater did not have 90 days to rate him
* the duty description was incorrect
* the OER contained factually incorrect information

10.  The contested OER was signed by the applicant's Rater on 11 April 2013, his Senior Rater on 15 May 2013, and by the applicant on 21 May 2013.  The referral memorandum together with his acknowledgement and rebuttal memoranda were attached to contested OER-1 and forwarded to Headquarters, Department of the Army (HQDA) for filing.  It was processed by HRC on 22 May 2013. 

11.  During August 2013, he received contested OER-2, an SRO OER which covered 3 months of rated time from 22 February 2012 through 22 August 2013 for his duties as Special projects Officer, E Squadron, AWG, Fort Meade, MD. His rater was LTC MCM, the Squadron Commander, and his Senior Rater was COL PJM, the Group Commander.  OER-2 shows in:

	a.  Part II(d), there is no "X" placed next to the question "This is a referred report, do you wish to make comments?"  Likewise, there is no "X" placed next to the answer "Yes" or "No," indicating this was not a referred report. 

	b.  Part  IVa, the Rater placed an "X" in the "Yes" blocks for all values.  

	c.  Part IV(b), the Rater also placed a "Yes" in what he believed the appropriate Leader attributes, skills, and actions.  There are no "No" entries.  

	d.  Part Va, the Rater placed an "X" in the "Satisfactory Performance – Promote" block, and entered the following comments:

During this rating period, [Applicant] did an exceptional job executing important Group and Squadron level tasks.  Some of his key accomplishments include; working with the concepts and integration squadron to develop the baseline training package and training topics for the Asymmetric Threat Awareness Course.  [Applicant] assisted in the research, design, and development of an expeditionary water survival test that was endorsed by the TRADOC [U.S. Army Training and Doctrine Command] proponent for swimming and water survival, USMA [U.S. Military Academy].  Additionally, [Applicant] authored a paper on adaptability, entitled, Adaptability:  Beyond the Buzzword, for publication in professional journals.  [Applicant] provided assistance during the stand up of Easy Squadron despite all the unforeseen challenges associated with a new unit standing up and sought ways to ensure the mission was accomplished.  [Applicant] proficiently executed his assigned duties in the squadron operations section.  The rated officer has completed a MSAF 360 as required by AR 350-1.

	e.  Part Vc, the Rater entered the comment: "Effective at his current grade."  

	f.  Part VIIa, the Senior Rater placed an "X" in the "Fully Qualified" and a second "X" in the "Yes" block to indicate he senior rated 32 officers of this grade (at the time) and that a DA Form 67-9-1 was received with this report and considered in his evaluation and review.

	h.  Part VIIb, the Senior Rater listed three future assignments for which the applicant was best suited, rated the applicant as "Center of Mass" and entered the following comments in Part VIIc:

[Applicant] performed his duties as the squadron special projects officer to standard.  His attention to detail and technical skill allowed him to develop and coordinate essential training for the Asymmetric Warfare Group.  [Applicant] utilized his background, education and critical thinking ability to author an adaptability paper which supports TRADOC's top long term priority to adapt TRADOC and the Army.  I consider him to be an Army officer with potential for continued service.  Continue to mentor and develop this field grade officer.

12.  Contested OER-2 was signed by the applicant's Rater on 8 November 2013, his Senior Rater on 14 November 2013, and by the applicant on 19 November 2013.  It was forwarded to HQDA for filing and it was processed by HRC on       14 January 2013. 

13.  On 2 December 2013, after his name had been referred to a DA PRB for consideration of his promotion status, by memorandum, the applicant was advised that the Secretary of the Army had directed the removal of his name from the Fiscal Year 2013 LTC Maneuver, Fires, and Effects Promotion Selection List, in accordance with Title 10, U.S. Code, section 629, Executive Order 12396, and AR 600-8-29 (Officer Promotions).  

14.  On 25 August 2014, a Board of Inquiry recommended the applicant be involuntarily eliminated from the Army based on misconduct and moral or professional dereliction with an honorable characterization of service.  

15.  He was honorably discharged from active duty on 19 September 2014 by reason of unacceptable misconduct.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 17 years, 10 months, and 23 days of active service. 

16.  He previously appealed contested OER-1 through HRC but was informed on 1 May 2014 that his appeal did not meet the requirements of AR 623-3 (Evaluation Reporting System) and as such was returned without action.  

17.  He provides his multiple OERs through his military service.  He also provides multiple statements of support and/or letters of recommendation from various military officers and civilian employees.

18.  AR 15-185 (ABCMR) provides DA policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.

19.  Army Regulation 623-3 prescribes the policies and tasks for the Army’s Evaluation Reporting System and includes reporting systems for officers.  It includes policy statements, operating tasks, and rules in support of operating tasks.  Commanders should exercise due diligence in maintaining rating schemes and ensuring the rendering of reports that are due.  Evaluation reports will indicate the appropriate nonrated codes for periods such as schooling, leave of 30 days or more and patient status (see DA Pamphlet 623–3).

	a.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army 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, counseling forms, and other pertinent regulations.  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.  Paragraphs 3-19(a) (b) and (c) state any mention of unproven derogatory information in an evaluation report can become an appealable matter if later the derogatory information is unfounded.  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 an evaluation report to HQDA.  For example, rating officials are not prohibited from commenting on a court-martial (judicial), if completed, but the comments should focus on the behavior that led to the court-martial rather than the court-martial itself.  If the rated Soldier is absolved, comments about the incident will not be included in the evaluation.  This restriction is intended to prevent unverified derogatory information from being included in evaluation reports.  

	c.  Paragraph 3-19d 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.  

	d.  Paragraph 3-19e states reports will not be delayed to await the outcome of a trial or investigation unless the rated Soldier has been removed from his or her position and is in a suspended status.  Upon completion of the trial or investigation, processing of evaluation reports will resume.  Evaluation reports will be completed when due and will contain what information is verified at the time of the “THRU” date of the report.

	e.  Paragraphs 3-20a and b state each report will be an independent evaluation of the rated Soldier for a specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance or incidents occurring before or after the period covered.  

	f.  Paragraph 6-11a states the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that (1) the presumption of regularity will not be applied to the report under consideration, and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility or 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.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the first contested OER:

	a.  In an AR 15-6 investigation, an IO concluded by the preponderance of the evidence that the applicant did improperly use government funds in violation of Article 92 (failure to obey order or regulation), Article 107 (false official statements), and Article 121 (larceny and wrongful appropriation) of the UCMJ. The IO recommended the applicant be relieved from his duties within the AWG and that he receive a letter of reprimand.  

	b.  The AR 15-6 was reviewed for legal sufficiency and was found legally sufficient.  A Command Judge Advocate determined the findings were supported by the evidence discovered and the recommendations consistent with those findings.  Since the ABCMR is not an investigative agency and since the findings and recommendations were found legally sufficient, the presumption of regularity prevails.  In other words, the applicant's dissatisfaction with those findings does not overcome the presumption of regularity.   

	c.  The applicant received a GOMOR and was also relieved from his duties.  Accordingly, he received an RFC OER.  Contested OER-1 was a referred OER because it contained derogatory information.  The Senior Rater referred the OER to him and he provided his comments to the Senior Rater.  Both the OER and his response are properly filed in his OMPF.  

	d.  He authenticated this OER with his signature, indicating the administrative data, including the rating officials, is correct.  He provides no evidence such as an approved/official rating scheme to support his contention that OER-1 listed incorrect rating officials.  

	e.  The rating officials did not comment on the findings of the investigation.  The Rater and Senior Rater merely stated he misused the government travel. Neither rating official was prohibited by the governing regulation from addressing their concern about his shortcomings.  

	f.  An OER is an assessment of one’s performance and potential during a specified period of time.  During that particular period of time, his rating officials assessed his performance and potential as indicated in the contested OER.  His dissatisfaction with his rating are not grounds to change the rating or remove contested OER-1 from his OMPF. 

	g.  His submission of other OERs throughout his military career is noted.  However, the fact that contested OER-1 appears to be (or is) inconsistent with the other reports he previously received has no bearing on the contested OER.  By regulation, each report is an independent evaluation of a rated Soldier for a specific rating period and, essentially, "stands alone."  

	h.  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.  This is not the case here.  

	i.  After a comprehensive review of his OMPF, the applicant's contentions and arguments, and the evidence submitted in support of his application, the applicant did not show by clear and convincing evidence that the contested OER contains a material error, inaccuracy, or injustice, or that OER-1 should be changed or removed.  Therefore, he is not entitled to the requested relief.

2.  With respect to contested OER-2, this OER covered the rating period 22 February 2013 through 22 August 2013, not 1 February 2013 through 22 August 2013 as he contends.  Additionally, he did in fact sign it.  More importantly, it is not a referred report.  On the contrary, it contains a positive rating with a Center of Mass potential rating.

	a.  Again, there is no evidence and the applicant has not provided sufficiently compelling evidence which shows the contested OER is substantively inaccurate and does not accurately reflect his performance or potential or that his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.

	b.  The ABCMR is not an investigative agency.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR will decide cases on the evidence of record.  He has not provided any evidence to support removal of OER-2. 

	c.  Therefore, also after a comprehensive review of the evidence in the applicant’s official record, his contentions and arguments, and the evidence he submitted in support of his application, he did not show by clear and convincing evidence, that his OER contained a material error, inaccuracy, or injustice.  In view of the foregoing, there is no basis to remove contested OER-2 from his OMPF. 

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)                                         AR20140016240



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ABCMR Record of Proceedings (cont)                                         AR20140016240



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