IN THE CASE OF:	  

		BOARD DATE:	  12 November 2014

		DOCKET NUMBER:  AR20140016882 


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 appellant requests his Officer Evaluation Report (OER) for the period 
2 May 2009 through 1 May 2010 (hereafter referred to as the contested OER) be removed from his official military personnel file (OMPF).  If the removal is not warranted, he requests the following corrections:

   a.  Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), remove the "X" from the "Unsatisfactory Performance, Do Not Promote" box.

   b.  Part Vb (Comment on Specific Aspects of the Performance), delete the comments, "At the mid-point of this rating period, personal circumstances required him to devote extensive on and off-duty time toward resolving.  [Applicant's] extensive absence from his place of duty hindered his opportunity to contribute to the unit's mission, and to gain the full level of experience that this current developmental assignment might otherwise have afforded."

   c.  In Part Vc (Comment on Potential for Promotion), remove the comment of "Subsequent developmental assignments should enable [applicant] to develop the experience needed for future consideration for promotion to COL [colonel]."

   d.  In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), remove the senior rater's rating of "Do Not Promote." 
   
   e.  In Part VIIb (Potential Compared with Officers Senior Rated in Same Grade), remove the "Below Center of Mass Retain" rating.  
   f.  In Part VIIc (Comment on Performance/Potential), remove the comments:  "However during this rating period, his performance was directly impacted by circumstances surrounding the intervention and ultimate removal of his daughters by state authorities for findings of physical neglect and general mental abuse by him, which has also brought into question his character and ability to lead.  Furthermore, his inability to accept personal responsibility is incompatible with desired leadership traits and overall expectations of an Army officer of his grade." 

2.  He states the Virginia Department of Social Services (VA DSS) determined the allegations that formed the basis for the contested OER were unfounded.  He adds that the VA DSS report is extracted because it is 25 pages long and contains minutes of the hearing with summaries of evidence and analysis.  The report contains a great deal of personally identifiable information (PII) of numerous people that is not relevant to his appeal.  

3.  In reference to the OER, he maintains it was administered prior to the completion of the civil investigations and appeals.  He believes these two issues, along with the information he provided to the Department of the Army Suitability Evaluation Board (correctly identified as the Officer Special Evaluation Board (OSRB)), invalidates the contested OER. 

4.  He offers that the senior rater's comments in Part VIIc regarding his "inability to accept personal responsibility" are completely prejudiced and reflective of her limited knowledge at that time.  He explains that the senior rater initiated an Army Regulation 15-6 investigation that simply regurgitated the same erroneous statement and information that was known by the military and family parties involved.  Contrary to the senior rater's comments, he does not believe it was a flawed leadership trait on his part to refuse to accept responsibility for things he had not done and that he knew to be false.  His two daughters are still in residential treatment facilities to this day and he continues to work on their behavioral health problems that created the circumstances behind his OER.

5.  He provides his contested OER; self-authored letter to the OSRB with their Record of Proceedings, dated 3 October 2013; and the VA DSS Decision on Appeal, dated 23 February 2012. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he is currently a lieutenant colonel (LTC) in the Regular Army with a date of rank of 1 June 2009.

2.  The contested OER is an annual OER while serving in the rank of LTC for the period 2 May 2009 through 1 May 2010 as the Joint Psychological Operations (PSYOP) Officer, Headquarters, U.S. Special Operations Command, MacDill Air Force Base, FL.  He was rated by the Division Chief, National Capital Region (NCR), a COL, and senior rated by the Commander, Joint Military Information Support Command (JMISC), a COL. The rater's and senior rater's
signatures are dated 16 June 2010 and the applicant signed the report on 
28 June 2010.  The contested OER shows the following:

   a.  In Part IId "(This is a referred report, do you want to make comments?)"  The applicant initialed "Yes, comments are attached."

   b.  In Part V (Performance and Potential Evaluation) the rater assessed the applicant's performance and promotion potential in Part Vb as "Unsatisfactory Performance, Do Not Promote" with negative supporting comments of "At the mid-point of this rating period, personal circumstances required him to devote extensive on and off-duty time toward resolving.  [Applicant's] extensive absence from his place of duty hindered his opportunity to contribute to the unit's mission, and to gain the full level of experience that this current developmental assignment might otherwise have afforded."

	c.  In Part Vc the rater provided comments of "Subsequent developmental assignments should enable [applicant] to develop the experience needed for future consideration for promotion to COL."

   d.  In Part VII (Senior Rater) rated the applicant's promotion potential in Part VIIa as "Do Not Promote" with supporting comment in Part VIIc of "However during this rating period, his performance was directly impacted by circumstances surrounding the intervention and ultimate removal of his daughters by state authorities for findings of physical neglect and general mental abuse by him, which has also brought into question his character and ability to lead.  Furthermore, his inability to accept personal responsibility is incompatible with desired leadership traits and overall expectations of an Army officer of his grade."  Additionally, he was rated as "Below Center of Mass Retain" in Part VIIb.

3.  On 28 June 2010, the applicant submitted a Memorandum for Record affirming that Parts Va, Vb, VIIa, VIIb, and VIIc ratings and comments listed on the contested OER were not true.  Additionally, he denied the validity of the evaluations as presented.  



4.  On 28 July 2010, a General Officer Memorandum of Reprimand (GOMOR) was imposed for conduct unbecoming an officer and gentleman.  The commanding general stated that "On various occasions during 2009, [applicant's] actions as a parent towards your daughters went far beyond normal bounds of parenting.  Specifically, on 22 March 2010, the Prince William County (PWC) Court determined that he had engaged in "bizarre discipline" and directed the removal of your daughters from your home.  In addition, the Fort Myer Family Advocacy Program Case Review Committee made two separate findings that [applicant] engaged in physical and emotional abuse of your daughters on various occasions in 2009."  

5.  On 27 August 2010, after reviewing the matters pertaining to the GOMOR, the commanding general directed that the reprimand be filed in the applicant's OMPF.

6.  On 23 April 2013, he appealed to the OSRB to have the contested OER amended as stated in paragraph 1 of this document.  In support of his appeal, he provided the Board of Inquiry (BOI) Proceedings, dated 5 November 2012.  The BOI determined the allegation that the appellant's actions towards his two daughters which resulted in their removal from his custody and findings suggesting that he engaged in physical and emotional abuse towards them, was not supported by a preponderance of the evidence.  In view of the above findings, the board recommended that the applicant be retained in the U.S. Army. The case was closed without further action.  

	a.  The OSRB denied the applicant's request to change the contested report as requested in paragraph 1 of this document.  The board stated the BOI's findings that he did not engage in the misconduct which was reflected in the contested OER and the fact that he was retained in the Army does not show that the comments and ratings reflected in the OER were inaccurate or unjust.  Additionally, the OSRB cited the applicant's GOMOR, dated 26 July 2010, as evidence that supported the ratings and the comments reflected on the contested OER.

	b.  The OSRB further stated that based on the available evidence, the applicant did not provide clear and convincing evidence which shows that the ratings on the contested report were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered.  Additionally, there was no evidence in the available records and he did not provide any evidence to show that the contested OER was inaccurate, unjust, or otherwise flawed.  Therefore, the board denied his request to change the contested OER. 

7.  The applicant provided a 4-page incomplete document from the VA DSS Decision on Appeal, dated 23 February 2012.  The document provides the procedural history of the appeal and states that on 3 and 9 December 2009, the PWC Department of Social Services received and then initiated complaints alleging that the applicant's two minor children may have been physically and mentally abused and physically neglected by the applicant.  

   a.  The agency determined the referral was a valid complaint of child abuse which required that the child be under the age of 18 at the time of the complaint and that the alleged abuser acted in the capacity of a caretaker as defined by the applicable regulation.

   b.  The dispositions of "Founded, Mental Abuse, Level Three, Founded, Physical Abuse (Inadequate Supervision), Level Three, and Founded, Physical Abuse (Bizarre Discipline), Level Three" with respect to both children were made against the applicant on 3 February 2010.  Following a local conference appeal hearing on 22 April 2010, all dispositions were sustained on 27 April 2010.  The applicant noted a timely appeal of this disposition to the Commissioner of the DSS.  The hearing officer received the case on 7 June 2010.
   
   c.  The applicant requested a delay for the purpose of taking depositions which were approved, but were not taken.  After several delays, the hearing was rescheduled and held on 7 December 2011, at the PWC DSS.  There was no appearance by or on behalf of the applicant who acknowledged by letter received on 2 December 2011 that he would not be present at the hearing.  
   
   d.  The agency offered its investigative report, which was accepted into the hearing record as the agency record for purposes of the hearing. 
   
   e.  Based on the evidence contained in the record and presented at the hearing, the disposition of "Founded, Mental Abuse, Level Three and Founded, Physical Abuse (Bizarre Discipline), Level Three" with respect to both children were amended to "Unfounded."

8.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. 

   a.  Paragraph 1-11 states that when it is brought to the attention of a commander that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter.  The Commander's Inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by Headquarters, Department of the Army and the conduct of the rated Soldier and members of the rating chain. 

   b.  Paragraph 3-25 (Evaluation of adverse actions) states that Army Regulation 600-20 (Army Command Policy) allows the mention in a Soldier's evaluation, in pertinent part, for acts of misconduct or physical or mental abuse when substantiated by a completed command or other official investigation (for example, commander's or commandant's inquiry, Army Regulation 15-6 investigation, Equal Opportunity investigation, and/or investigations by official military or civil authorities). 
   
   c.  Paragraph 3-26 (Referred evaluation reports) states that, in pertinent part, any report with negative remarks about the rated officer's Values or Leader Attributes/Skills/Action in rating official's narrative evaluations will be referred to the rated officer by the senior rater for acknowledgment and comment before being forwarded to Department of the Army.

   d.  Paragraph 3-28 states that the referral process ensures the rated Soldier knows that his OER contains negative or derogatory information and affords him the opportunity to sign the evaluation report and submit comments, if desired. If comments are provided the comments will be factual, concise, and limited to matters directly related to the evaluation on the OER.
   
   e.  If the senior rater decides that the comments provide significant new facts about the rated Soldier's performance that could affect the evaluation of the rated Soldier, he or she may refer the comments to the other rating officials, as appropriate.  The rating officials, in turn, may reconsider their evaluations of the rated Soldier.  The senior rater will not pressure or influence another rating official.  Any rating official who elects to raise their evaluation as a result of this action may do so.  However, the evaluation may not be lowered because of the rated Soldier's comments. 
   
   f.  Paragraph 3-36 states that evaluation reports accepted for inclusion in the official record of an officer 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.  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.  The burden of proof rests with the applicant.
9.  Army Regulation 600-8-24 (Officer Transfer and Discharges) prescribes the officer transfers and discharge functions for all officers on active duty for 30 days or more.  Paragraph 4-6 states that a BOI purpose is to give the officer a fair and impartial hearing determining if the officer will be retained in the Army.  The BOI establishes and records the facts of the applicant's alleged misconduct, substandard performance of duty, or conduct incompatible with military service. Based upon the findings of fact established by its investigation and recorded in its report, the board then makes a recommendation for the officer's disposition, consistent with this regulation.  The Government is responsible to establish, by preponderance of the evidence, that the officer has failed to maintain the standards desired for their grade and branch.  In the absence of such a showing by the Government, the board will retain the officer.  However, the applicant is entitled to produce evidence to show cause for his retention and to refute the allegations against him.  The applicant's complete OMPF will be entered in evidence by the Government and considered by the Board of Inquiry.

DISCUSSION AND CONCLUSIONS:

1.  The applicant maintains that the contested OER should be removed because the allegations that formed the basis for the contested OER were determined to be unfounded by the VA DSS.  He states, in effect, that the VA DSS document as well as the BOI proceedings invalidates the contested OER. 

2.  The evidence of record shows that on 22 March 2010 the PWC Court determined the applicant had engaged in "bizarre discipline" and directed the removal of his daughters from his home.  Additionally, the Fort Myer Family Advocacy Program Case Review Committee found that he engaged in physical and emotional abuse of his daughters on various occasions in 2009.

3.  On 16 June 2010, he received a referred OER that he signed on 28 June 2010, indicating that comments were attached.  In his comments he affirmed that the information in Parts Va, Vb, VIIa, VIIb, and VIIc were not true and he denied the validity of the contested report.  He failed to provide an argument and/or present any type of explanation concerning his disagreement with the comments and/or ratings that might have affected the senior rater's (e.g., circumstances surrounding his daughters’ removal brought into question his character and ability to lead) and rater's (e.g., that his extensive absence hindered his opportunity to contribute to the unit’s mission) assessment of his performance. 

4.  In his appeal to the OSRB, the applicant submitted the BOI Proceedings dated 5 November 2012.  The BOI determined the allegations that the applicant's actions towards his two daughters which resulted in their removal from his custody and findings that suggested he engaged in physical and emotional abuse towards them, was not supported by a preponderance of the evidence.  The BOI elected to retain him in the Army.  The OSRB denied his request stating that the fact he was retained in the Army does not show that the comments and ratings reflected in the contested OER were inaccurate or unjust.  Additionally, the OSRB cited the applicant's GOMOR as justification for the contested report.

5.  As cited in paragraph 6 of this document, the BOI is required to review a Soldier's complete OMPF prior to determining whether or not to retain that Soldier in the Army.  Therefore, the fact that the BOI considered the "total Soldier concept" and elected to retained him in the military is not sufficient evidence to conclude that the contested OER is inaccurate or unjust.

6.  Further, the fact that the applicant provides 4 pages of a VA DSS 25-page document indicating that the allegations which formed the basis of the contested OER were "unfounded" is not sufficient evidence to conclude that the contested OER is invalid.  Based on the absence of a complete VA DSS document, there appears to be a disconnect between the decision of "unfounded" and the evidence provided in the agency investigative report.  The 4-page document indicates that there were several delays in the scheduling of the hearing, one specifically based on the applicant's request and approval to obtain depositions, which were not taken.  Additionally, there was no appearance by or on behalf of the applicant.  These inconsistencies question the legality and the basis of an "unfounded" final decision.  Further, the initial dispositions were founded, mental abuse; founded, physical abuse (inadequate supervision); and founded, physical abuse (bizarre discipline).  The document he now provides did not “unfound” the physical abuse (inadequate supervision) issue.

7.  There is no evidence available and the applicant has not provided sufficient evidence to show the ratings and comments listed on the contested report are inaccurate, unjust, and/or are not consistent with the applicant's demonstrated performance of duty during the rating period.  Therefore, in the absence of more compelling evidence, there is no basis to remove the contested report or correct any of the ratings or comments as requested.  

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)                                         AR20140016882





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ABCMR Record of Proceedings (cont)                                         AR20140016882



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