IN THE CASE OF:	  

		BOARD DATE:	 14 July 2015 

		DOCKET NUMBER:  AR20140021703 


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 following:

* removal of the DA Form 67-9 (Officer Evaluation Report (OER)) for the period 1 August 2011 through 31 July 2012 (hereafter referred to as the contested OER) from his official military personnel file (OMPF)
* deletion of the administrative elimination action initiated by the Commanding General (CG), U.S. Army Human Resources Command (HRC)
* amendment of the whistleblower Inspector General (IG) complaint filed on 26 September 2012
* restoration of his service record to show he was present for duty from 21 June through 17 July 2012

2.  The applicant states:

   a.  He served as the Deputy Secretary for Finance (Resource Management (RM)) for the Inter-American Defense College/Inter-American Defense Board (IADC/IADB) from 4 January 2010 through 17 July 2012.  On 30 August 2012, he received a draft of the contested OER.  He provided comments via email to the IADC Chief of Staff (CoS), Colonel (COL) Jxxxx Bxxxxx.  That email contained the following attachments:

		(1)  Memorandum for Rear Admiral (RADM) Jxxxxxx Lxxxxxx (his rater/senior rater (SR)), dated 30 August 2012, Subject:  Response to Referral of OER dated 31 July 2012.
		(2)  Email from the RADM to him directing him not to communicate directly with him further.

		(3)  Draft OER signed by RADM Lxxxxxx on 17 July 2012 (OER Version #1).

		(4)  Draft OER signed by RADM Lxxxxxx on 21 September 2012 (OER Version #2).

		(5)  Army Physical Fitness Test (APFT) Scorecard, dated 20 April 2012.

   b.  On 21 June 2012, he was arrested by Prince William Country (PWC) Police after his wife reported him for trespassing on her property.  The police arrested him even though he was lawfully at her apartment in accordance with a year-long visitation agreement to see his children.  He was charged with trespassing for that event and for assault/battery for an event she reported that occurred on 16 June 2012.  He was released on 17 July 2012 after spending nearly 30 days in the PWC jail under a "military hold."  

   c.  On 4 August 2012, the trespassing charge was "nolle prossed," meaning the prosecutor declined to prosecute the charge.  On 18 October 2012, the judge deferred adjudication of the assault/battery charge until 21 October 2014.  On 21 October 2014, the judge dismissed the assault/battery charge with prejudice.  He is no longer under any charges relating to the June 2012 arrest or any other charges for that matter.  He and his wife are currently living together with their children in SC.

   d.  He initiated a whistleblower report to the IADC CoS, COL Bxxxxx.  He attached 12 enclosures to that communication to describe improper, illegal RM practices occurring at the IADB.  For brevity with this Army Board for Correction of Military Records (ABCMR) appeal, he has only included 3 of those 12 enclosures.  His two principal complaints concerned the following:

		(1)  The arrangement was improper in that Major (MAJ) Dxxxx Mxxxxx (his predecessor in his job) ran Martin Financial Solutions, LLC and employed Mr. Gxxxx as a contractor to perform inherently governmental functions (IGF) including "advising on all issues related to funding including the Department of Defense (DOD) funding and contracting."  On top of the improper IGF issues, Mr. Gxxxx's employment as a contractor violated a number of conflict of interest rules regarding federal service.

		(2)  The IADB's contract with Natural, LLC was improper because Natural, LLC was registered to Mxxxx Wxxxxxx, a former Army staff sergeant employed as a budget noncommissioned officer in charge for the IADB-RM.  Her employment as a contractor violated a number of conflict of interest rules regarding federal service.

   e.  As the RM and certifying official for the IADC/IADB, he was subject to personal liability for all of the transactions he authorized.  He complained to the CoS about those irregularities and requested an open investigation into the improprieties.  By Memorandum for Record, dated 4 November 2011, the CoS acknowledged his concerns by documenting that "the IADB is in the process of reviewing RM operations."

   f.  On 26 September 2012, he filed a whistleblower reprisal claim to the Joint Staff IG based on the contested OER which was then in draft form.  The IG required him to state when he became aware of the adverse personnel action.  He used the date of 26 July 2012.  In a letter, dated 20 November 2012, the DOD IG (DODIG) advised him that his complaint was not timely filed because his reporting date (26 September 2012) was 61 days after he learned of the adverse action.  According to the DODIG, he exceeded by 1 day the 60-day maximum timeline to make a whistleblower reprisal claim.  

   g.  On the advice of counsel, he has separately filed another whistleblower complaint to the DODIG to demonstrate the wrongfulness of their decision for two reasons.  He does not think the 60-day clock had to be applied so rigorously and he does not believe the 60-day clock should have begun until the final version of the OER was submitted to HRC.  DODIG ended the 60-day clock even as the rating officials were amending version 1 or 2 of his OER, a full 45 days before the final version was signed.

   h.  He applied for ABCMR relief on 16 July 2013.  That action was returned to him for failure to exhaust administrative remedies.  By memorandum, dated 21 November 2013, the CG, HRC, initiated elimination action against him based on the recommendations of a centralized selection board which viewed the contested OER.  On 9 January 2014, he appealed the contested OER.  The Army Review Boards Agency (ARBA), Officer Special Review Board (OSRB), reviewed and denied his appeal.

   i.  On 21 November 2012, a board of inquiry recommended that he be separated from the service with an honorable discharge.  That action is now being prepared for forwarding through the General Officer Show Cause Authority and Commander, HRC, for final action by the Secretary of the Army.  Government counsel requested the board to consider the comments on the contested OER, his unsuccessful appeal of the OER, and to separate him, because in that counsel's view "since he had no future of making O-6, the board should let him go and just retire now."  Due to the negative outcome of the board, he is now forced to submit a retirement in lieu of elimination request instead of a voluntary retirement.

   j.  Whether he retires in lieu of elimination or voluntarily, his entire record, including the contested OER, will be referred to the Army Grade Determination Review Board (AGDRB) to determine that grade in which he last served satisfactorily.  If the board finds the contested OER indicated he did not serve satisfactorily as a lieutenant colonel (LTC), he will retire in the grade of major, losing approximately $250,000 over a lifetime in retirement.

   k.  The contested OER is procedurally defective.  Block VIIc (SR) states, "[The Applicant] refused to provide comments."  This statement is false.  He submitted rebuttal comments via email to the IADB Chief of Staff that were not included with the OER.  He believes the rating chain's failure to include the comments violates Army Regulation 623-3 (Personnel Evaluation - Evaluation Reporting System), paragraph 3-28.  As proof that the command had his comments and used them, the highlighted changes should be compared between Version #1 and #2 of the contested OER.

   l.  Block Vb (Performance and Potential Evaluation) erroneously mentions two arrests when in fact there was only one.  On top of this factual error, mention of the arrest itself violates the Army's policy on referring to unproven derogatory information as specifically stated in paragraph 3-19 of Army Regulation 623-3.  The comment that he was arrested twice is simply false.

   m.  The OER is unfair, lacks objectivity, and contains inaccurate statements. On the front side of the contested OER, the rater selected 23 out of 23 possible "No's" to describe his character and attributes.  He believes these entries are patently un-objective, unfair, and overreaching.  "Fairness" and "Objectivity" are stated goals within the Army OER policy.  The rater even checked "No" in Block IVc (Leader Attributes/Skills/Actions) for the attribute of "Physical" notwithstanding his perfect 300 APFT.

   n.  Block Vb contains several comments relating to his performance as an RM.  These comments are also false and he believes they were entered as reprisal for his protected communication and exacerbated by the untimely arrest on charges that were later dropped.  He is enclosing several letters from individuals who disagree with these comments.  

   o.  He further requests deletion of the administrative elimination action initiated by the CG, HRC, that used the contested OER as grounds for initiating the separation action.  The only reason for the elimination action was the contested OER.  Based on the aforementioned noted errors and his parallel action attempting to restart his reprisal claim with DODIG, it is unfair that he should be eliminated.

   p.  He also requests amendment of his IG complaint of 26 September 2012 to allow for a proper investigation of his protected communication.  He thinks the conclusion to time-bar that action was patently unfair.  Without question, he believes many of the comments in the contested OER flowed from him making the protected communication.  He thinks it is unfair and unlawful that he had not been afforded the protection of a whistleblower.  

   q.  He further requests restoration of his service record to reflect he was present for duty from 21 June through 17 July 2012.  He spent 27 days in civilian pre-trial confinement for charges that were later dismissed.  To this day, he had never been presented with any rationale for the incredibly lengthy period of pre-trial confinement.  During that time he was only visited once by a member of the unit.  This visit was not to check on his welfare; rather it was to seek information related to his RM duties.  Had he had the foresight to do so then, he would have sought redress via the IG or an Article 138 complaint to demand at least an explanation for the military hold.  He believes the command's casting him off in that instance was further proof of their un-objective and unfair treatment of him and his case.  

   r.  He has been in the Army for 22 years.  He has never seen any command treat another Soldier of any rank the way he was treated by leaving him confined. He is including his leave and earnings statement (LES) from June to July 2012 to demonstrate that he lost pay and benefits during that period of confinement.  The contested OER has effectively ended his otherwise unblemished career.  He is not requesting any special rights.  He is simply requesting the Board take action to enforce his right to have the Army abide by its own rules and, in the case of denial of his whistleblower protection, federal law.

3.  The applicant provides copies of the following:

* email correspondence
* Business Consultant Agreement
* note from the applicant
* Review of RM Operations at the IDAB memorandum
* DA Form 705 (APFT Scorecard)
* email correspondence between the applicant and the Commander, Headquarters Command Battalion
* Request for Endorsement to Follow-On Assignment
* two LESs 
* Warrant of Arrest---Misdemeanor (State)
* Response to Referral of OER memorandum
* Response to Referred OER email correspondence
* contested OER (version #1)
* DA Form 1559 (IG Action Request)
* Contested OER (final version)
* letter from the DODIG
* Supporting Statement for Evaluation Report Appeal memorandum
* Initiation of Elimination memorandum
* Duty Status Listing
* two letters from the ARBA
* two OER Appeal Based Upon Substantive Inaccuracies memoranda
* OER Appeal denial memorandum
* Estimated Retirements Benefits memorandum
* DA Form 1574 (Report of Processing by Investigating Officer/Board of Officers)
* DODIG Hotline Complaint
* Reconsideration of DODIG Military Whistleblower Claim memorandum
* excerpts of Army Regulation 623-3, chapter 3

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statements to the applicant and provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was commissioned in the Regular Army, as a second lieutenant on 13 August 1993 with prior enlisted service.  He was promoted to LTC on 1 June 2010.  

2.  He provided copies of the following:

   a.  Email correspondence, dated 29 August 2011, which pertains to his receipt of DOD funds and the funds being deposited into the IADB's account.

   b.  A Business Consultant Agreement, dated 1 September 2011, wherein an agreement was made between Martin Financial Solutions and IADB for consulting services from 15 September 2011 through 30 March 2012.  He also provided a copy of background information on personnel with each company.

   c.  A note, dated 4 November 2011, wherein the applicant stated he was attaching two vouchers that were signed and processed for acceptance pending review of RM operations at the IADB.

   d.  A Review of RM Operations at the IADB memorandum, dated 4 November 2011, which stated the IADB was in the process of reviewing RM operations at the IADB.

   e.  A DA Form 705 which shows he passed the APFT in 2011 and 2012.

   f.  Two LESs for the periods 1 to 30 June 2012 and 1 to 31 July 2012, which show he was in a non-pay status during those periods.  

   g.  Contested OER (draft version) for the period 1 August 2011 through 31 July 2012.  This was a "Relief for Cause" report for his duties as the Deputy Secretary of Finance (RM).  In Part IId (Authentication), the rater checked the block to indicate it was a "referred report."  The OER shows in:

		(1)  Part IVa (Army Values) the rater placed an "X" in the "No" blocks for Honor, Integrity, Courage, Loyalty, Respect, Selfless-Service, and Duty.

		(2)  Part IVb the rater placed an "X" in the "No" blocks for Mental, Conceptual, Physical, Interpersonal, Emotional, Technical, Tactical, Communicating, Planning, Developing, Decision-Making, Executing, Building, Motivating, Assessing, and Learning.

		(3)  Part Va the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block and entered the following comments:

[Applicant] is relieved for cause.  He has been returned to service for his repeated lack of judgment and misrepresentation of financial accounts.  I have lost confidence in his ability to perform his duties.  [Applicant] failed to perform his fiscal duties in a timely manner and purposely created a backlog of financial transactions that nearly rendered this command unable to conduct business.  Shortly after this discovery, [Applicant] was arrested twice in July 2012 and charged with Assault and Battery and Trespassing.  [Applicant] is now awaiting a court appearance scheduled for August 2012.  On 16 July 2010, [the applicant] was issued a Military Protective Order – restraining order by the Commander, Headquarters and Headquarters Company (HHC), U.S. Army Garrison, Joint Base Myer-Henderson Hall, Fort Myer, VA.  [Applicant] violated that order on 23 September 2011.  On 3 March 2011, Major General (MG) Kxxx R. Hxxxx issued [Applicant] an official Letter of Reprimand (LOR).  [Applicant] continues to display a lack of emotional and moral judgment.  He has no place in the U.S. military as an Officer.  

		(4)  Part Vc, the rater entered the comment, "[Applicant] should not be considered for promotion."

		(5)  Part Vd, the rater entered the comment, "[Applicant] has no military leadership potential in the active, Reserve, or Guard components.  Recommend a career outside of the U.S. Army."

		(6)  Part VIIa, the SR placed an "X" in the "Do Not Promote" block and entered the following comments:  SR is also the rater.  Removed for Cause.  

		(7)  Part VIIb, the SR rated him as "Below Center of Mass, Do Not Retain" in comparison to four officers in the same grade.  

		(8)  Part VIIc, the SR entered the comment, "Would be of best service outside the U.S. Army."

		(9)  This form was signed by the rater/SR on 17 July 2012.

   h.  Request for Endorsement to Follow-On Assignment email correspondence, dated 6 August 2012, wherein the RADM advised the applicant that he stood by the OER the applicant had received.  On 18 May 2012, after he was briefed at the "CASA" regarding the status of their account and after he was informed that they had sufficient information to perform their pecuniary and fiduciary obligations, he directed the applicant process all outstanding vouchers.  Shortly thereafter, the applicant had informed him that he had submitted everything into the system and he was tracking each one.  On the applicant's last day, which was 1 month later, they discovered that vouchers going back through seminars, trips, etc., were still unprocessed.  Even then they continued to search for the detailed information they needed to close their FY11 and FY12 accounts.  He also advised the applicant not to communicate further with him.

   i.  A Warrant of Arrest—Misdemeanor (State) which shows he was arrested on 16 June 2012 for trespassing and assault/battery of a family member.  He was scheduled to appear in court on 28 August 2012.  After consulting with counsel, he pled not guilty and adjudication was deferred to 20 October 2014.  On 18 October 2012, the order was dismissed with prejudice.

   j.  A Response to Referral of OER memorandum, dated 30 August 2012, wherein he stated the following:
   
		(1)  In Part IVc APFT it reads 27 April 2012 which is not the actual date of his APFT.  The actual date was 20 April 2012 as shown on his digitally signed APFT score sheet attached.  The Height and Weight data read 67 inches and 150 pounds on the OER and should read 67 inches and 140 pounds as shown on the digitally signed copy of his AFPT score sheet.

		(2)  In Part Va the OER has the Unsatisfactory Performance block checked.  The IADC operated at a budget surplus over the rated period in addition to the $256,000 surplus rolled over from the previous budget cycle.  The IADC operated “no year” funds such that budget cycle surplus is available for execution during the subsequent budget cycle, thereby creating no negative consequence from budget surpluses.  In that context, he would, as the RM, interpret a budget surplus as at least a Satisfactory Performance box check for Part Va.

		(3)  In Part Vb the first line read that he misrepresented financial accounts…During the weekly budget meetings that he held with the staff on Wednesday at 1000 and the various Voucher Processing Reports that he "submitted to the CoS and you sir," he had not seen an example of where he misrepresented any information on the financial accounts.  He further affirmed now that all information presented on reports by him is true and correct.

		(4)  The second sentence of Part Vb read that he failed to perform his duties in a timely manner and “purposely” created a backlog…Firstly, all funds committed on behalf of the IADB were done so by him as of the time of his “no notice” departure if the event (Graduation, for example) had already occurred.  Secondly, three vouchers, unsigned and unprocessed by him that were on his desk at the time of his “no notice” departure, related to seminars that had been completed, but required coordination with the finance office at the Casa del Soldado prior to submission to the Defense Finance and Accounting Service.  He had repeatedly requested a time from the finance office at the Casa del Soldado for this coordination to occur without a response.  The funds represented by the vouchers had not been reported as processed and the obligation documents had been returned in a timely manner making the subsequent funds deposited on behalf of the IADB possible up until 30 September 2013.  There was no shortage of operational cash as a result of those vouchers not being processed and no reasonable fear as of 21 June 2012 that those vouchers would not be processed before 30 September 2013.  Funds from other available cost categories were used to ensure adequate operational cash was available in the IADB bank account.

		(5)  There was one arrest on 21 June 2012, not two as indicated in the report.  Trespass and Assault/Battery, at the time of the report, were allegations. Neither had since been proven even though the court dates had come and gone. One court date was extended and for the other, the court decided not to process pending a 1-year probationary period.  Given the through date of that report, 31 July 2012, that information cannot be included in accordance with (IAW) Army Regulation 623-3.  Further, all allegations by his wife were her attempts to gain sole legal custody of his 7-year old daughter and his 5-year old son, nothing more.

		(6)  The MPO referenced was issued by the Battalion Commander, not the HHC commander as listed on the OER.  The violation of the MPO reference in the last line of the 3rd paragraph of Part Vb could not have happened on 23 September 2011 as listed on the OER since that date is after the issuance of the resulting locally filed LOR.  The correct date was 23 September 2010; therefore, making that information irrelevant for that report.  The LOR is incorrectly listed as records in his official file as opposed to the true filing which was locally.  

		(7)  In Part Vc, given the lack of accuracy in Part Vb, he requested a re-look of the assessment in Part Vc.  He requested a review of his OER and standing within the IADC as a result of the aforementioned observations.

   k.  A Response to Referred OER email, dated 6 September 2012, wherein the CoS, IADC, requested from the applicant some time to review and consult with the experts on his concerns.  

   l.  A DA Form 1559 he completed and signed on 26 September 2012 regarding the whistleblower protection program and its working process.

   m.  Contested OER (Version #1) which contains the same entries in Parts II, III, and IV as the draft version.  The OER shows in:

		(1)  In Part Va the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block and entered the following comments:

[Applicant] is relieved for cause.  He has been returned to service for his repeated lack of judgment and misrepresentation of financial accounts.  I have lost confidence in his ability to perform his duties.  [Applicant] failed to perform his fiscal duties in a timely manner and purposely created a backlog of financial transactions that nearly rendered this command unable to conduct business.  Shortly after this discovery, [Applicant] was arrested twice in July 2012 and with the charge of Assault and Battery and Trespassing.  [Applicant] is now awaiting a court appearance scheduled for August 2012.  On 3 March 2011, MG Kxxx R. Hxxxx issued [the applicant] an official LOR which was filed locally in reference to a violation to the direct order of Military Protective Order – restraining order by the Battalion Commander, U.S. Army Garrison, Joint Base Myer-Henderson Hall, Fort Myer, VA on 23 September 2010.  [Applicant] continues to display a lack of emotional and moral judgment.  He has no place in the U.S. military as an Officer.  

		(2)  Parts Vc, Vd, VIIa, VIIb, and VIIc contain the same entries as the draft version of the OER.

		(3)  This OER was signed by the rater/SR on 21 September 2012.

   n.  An Attachments Supporting Report Under the Provisions of Title 10, USC, Section 1034, dated 4 October 2012, which shows he reported to the IADC CoS that the RM operations at the IADB were in need of a review.  The IADC had processed a Return to Service with Cause action against him, provided information to the HHC, U.S. Army Garrison commander recommending that he be subjected to a Command Directed Behavioral Health Evaluation (Psychological), and had given him a Below Center of Mass, Do Not Retain, Relief for Cause OER.  The IADC CoS signed the memorandum, dated 4 November 2011, acknowledging his request for an external review of the RM operations at the IADB.

   o.  Contested OER (Version #2) which contains the same entries in Parts II, III, and IV as the draft version.  The OER shows in:

		(1)  Part Va the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block and entered the following comments:

[Applicant] is relieved for cause.  He has been returned to service for his repeated lack of judgment and misrepresentation of financial accounts.  I have lost confidence in his ability to perform his duties.  [Applicant] failed to perform his fiscal duties in a timely manner and purposely created a backlog of financial transactions that nearly rendered this command unable to conduct business.  Shortly after this discovery, [Applicant] was arrested twice [emphasis added] in July 2012 with the charge of Assault, Battery, and Trespassing.  [Applicant] continues to display a lack of emotional and moral judgment.  He had no place in the U.S. military as an Officer.

		(2)  Parts Vc, Vd, VIIa, and VIIb contain the same entries as the draft and Version #1 of the OER.

		(3)  Part VIIc, the SR entered the comments, "I am serving as both rater and SR IAW AR 623-3, 2-21.  The rated officer refused to sign. I personally informed [Applicant] that this evaluation was a referred report and I gave him every opportunity to provide comments.  [Applicant] refused to provide comments.  Would be of best service outside the US Army."

		(4)  This OER was signed by the rater/SR on 6 November 2012.  This OER is filed in the performance portion of his OMPF.

   p.  A letter, dated 20 November 2012, wherein the DODIG advised the applicant that they had reviewed his allegations of reprisal and had determined the complaint was not timely filed.  Under Title 10, USC, section 1034, "an investigation was not required if the member did not file the complaint within 60 days of becoming aware of the personnel action at issue.  He indicated that the most recent alleged unfavorable personnel action was communicated to him on 26 July 2012; however, he did not file the reprisal complaint with an IG until 26 September 2012, more than 60 days later.  Accordingly, the complaint was not timely filed.  Under Title 10, USC, section 1034, he could request review of the matter by the ABCMR.

   q.  A Supporting Statement for Evaluation Report Appeal memorandum, dated 4 March 2013, wherein a former member of the Military District of Washington stated his support on behalf of the applicant and that the applicant fulfilled his requirements as the Finance Officer assigned to support the IADB. 

   r.  An Initiation of Elimination memorandum, dated 21 November 2013, wherein the CG, HRC, advised the applicant that he was identified by the FY13, COL, Army, Operations Support Promotion Selection Board to Show Cause for retention on active duty under the provisions of Army Regulation 600-8-24 (Officer Separations), paragraph 4-2(b and c), because of misconduct, moral, or professional dereliction and derogatory information.  That action was based on the following specific reasons for elimination:

		(1)  Substantiated derogatory activity resulting from a referred OER which was filed in his OMPF.

		(2)  Conduct unbecoming an officer as indicated by the above-referenced item.

		(3)  He was advised of his rights to submit a rebuttal; or submit his resignation in lieu of elimination according to Army Regulation 600-8-24, chapter 4; or apply for retirement in lieu of elimination if otherwise eligible according to Army Regulation 600-8-24, chapters 4 and 6.  He could also submit matters for the AGDRB because his retirement in lieu of elimination would be forwarded to the AGDRB.  That board would make a recommendation as to the highest grade in which he had served satisfactory for retirement purposes.  

   s.  A Duty Status Listing which shows the following:

   * Present for duty on 15 July 2007
   * In-Transit on 28 September 2007
   * Present for duty on 28 September 2007
   * In-Transit on 3 January 2010
   * Present for duty on 3 January 2010
   * Confined by Civilian Authorities on 21 June 2012
   * Present for Duty on 17 July 2012
   * Confined by Civilian Authorities on 17 July 2012
   * In Transit on 10 April 2013
   * Present for Duty on 10 April 2013
   * Ordinary Leave on 16 October 2014
   * Present for Duty on 20 October 2014

   t.  A letter, dated 17 September 2013, wherein the ABCMR advised the applicant that the Board could not consider any application until the applicant had exhausted all administrative remedies and returned his application without prejudice and action.

   u.  An OER Appeal Based Upon Substantive Inaccuracies memorandum, dated 16 December 2013, wherein the Deputy G-8, U.S. Army Central, advised HRC of his support for removal of the contested report from the applicant's file.

   v.  An OER Appeal Based Upon Substantive Inaccuracies memorandum, dated 20 December 2013, wherein the Brigadier General, U.S. Army Central, advised HRC of his support for removal of the contested report from the applicant's file.

   w.  A memorandum, dated 9 January 2014, wherein the applicant requested an appeal of the contested OER based on the denial of an IG investigation and substantive inaccuracies.  

   x.  An OER Appeal memorandum, dated 2 September 2014, wherein the OSRB advised HRC of the denial of the applicant's appeal of the contested OER.
   y.  An Estimated Retirement Benefits memorandum, dated 5 November 2014, wherein the U.S. Army Audit Agency prepared a report of the results of the retirements calculations for the applicant.  

   z.  A DA Form 1574 which shows a board of officers convened on 21 November 2014.  The board found there was sufficient evidence to prove that the applicant had substantiated derogatory activity resulting in a referred OER for the period 1 August 2011 through 31 July 2012 which was filed in his OMPF and he had engaged in conduct unbecoming an officer as indicated in the OER.  The board recommended the applicant be separated from the Army with an honorable discharge.

   aa.  A DODIG Hotline Compliant which he submitted on 15 December 2014.

   bb.  A Reconsideration of DODIG Whistleblower Claim memorandum, dated 16 December 2014, the applicant submitted through counsel for reconsideration of his prior complaint pertaining to the contested OER being made in reprisal for making a protected communication to a member of his chain of command.  In addition, he opened a new complaint based on the recent adverse personnel action taken against him by the separation board that recommended his elimination action on 21 November 2014.

   cc.  Excerpts of Army Regulation 623-3, paragraph 3-19.

3.  On 30 January 2015, the Office of the IG advised the Board that they had conducted a diligent search but found no IG records responsive to their request pertaining to the applicant.

4.  Army Regulation 623-3 prescribes the policies for completing the OER and associated documents that are the basis for the Army's Evaluating Reporting System.  The regulation states in:

   a.  Paragraph 3-19b and c – 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 Headquarters, Department of the Army.  This restriction is intended to prevent unverified derogatory information from being included in a report and prevent unjustly information from being permanently included in a Soldier's OMPF such as when the charges are later dropped.

   b.  Paragraph 3-19d – 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.
   c.  Paragraph 4-4 - Alleged errors, injustices, and illegalities in a rated Soldier’s evaluation report may be brought to the commander's or commandant’s attention by the rated Soldier or anyone authorized access to the report.  An appeal will be supported by substantiated evidence.

   d.  Paragraph 4–8 - Because evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous report be corrected as soon as possible.  Substantive appeals will be submitted within 3 years of an OER “THRU” date. 

   e.  Paragraph 4-11 – The burden of proof rests with the appellant; accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice.

5.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the OMPF Management Program and it composition.  The regulation states once a document is placed in the OMPF it become a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.

6.  Department of Defense Financial Management Regulation Volume 7A: "Military Pay Policy – Active Duty and Reserve Pay" states that a commissioned officer may not count confinement by military or civilian authorities for more than 1 day in connection with a trial, whether before, during or after the trail for any purpose other than that of computing length of service for basic pay. 

DISCUSSION AND CONCLUSIONS:

1.  With regard to the contested OER:
   
   a.  The applicant has shown that this OER contains administrative errors.  He provided an APFT Scorecard dated 20 April 2012 that shows he passed the APFT with a score of 300 points.  Therefore, based on the evidence of record the contested report should be corrected to show in Part IVb.2 (Physical Attributes) that he maintains an appropriate level of physical fitness.  
   
   b.  His contention that he was only arrested once was carefully considered and found to have merit.  The evidence of record shows he was arrested once and that two charges were filed against him for assault/battery and trespassing.  Therefore, there is sufficient evidence to correct Part V of the contested OER to show only one arrest. 
   c.  Notwithstanding the above recommendations, he has not shown that the remainder of the contested OER was not prepared in compliance with applicable regulations and policy.  He was provided a draft version of the OER in July 2012.  He requested a review of the report.  Changes were made and a final report was signed by the rater/SR on 21 November 2012.  The SR indicated the applicant refused to sign the report.  That report was filed in his OMPF accordingly.
   
   d.  During the intervening time between the draft and final versions of the OER, he submitted a whistleblower complaint to the DODIG.  The DODIG subsequently advised him that they had reviewed his allegations of reprisal submitted and had determined the complaint was not timely filed.  

   e.  On 21 November 2012, a board of officers recommended his elimination because of misconduct, moral, or professional dereliction and derogatory information with an honorable discharge.  He was advised of his rights.

   f.  Without sufficient evidence to the contrary, the contested report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.

   g.  He has not provided convincing evidence that this OER was unjust, in whole or in part, to support removal from his OMPF.  There is no substantive evidence of record and he has provided none to show the contested report is incorrect, inaccurate, or unjust.

   h.  In view of the facts of this case, it appears that the evaluation contained on the contested OER represents the considered opinions and objective judgment of his rater at the time of its preparation.  In accordance with regulatory guidance there must be compelling evidence to support the deletion or the removal of a properly-completed, facially-valid DA Form 67-9 from a Soldier’s records.  Absence evidence meeting this regulatory standard there is an insufficient evidentiary basis to support the requested relief.  

2.  With regard to deletion of the administrative elimination action initiated by the CG, HRC, the ABCMR has no jurisdiction on this matter and cannot take action.  The case has to be completed before the ABCMR would consider it.

3.  With regard to amendment of the whistleblower IG complaint filed on 26 September 2012:

   a.  The evidence shows on 2 November 2012, he was advised by the DODIG that his complaint was not timely filed.  He was also advised an investigation was not required if the member did not file the complaint within 60 days of becoming aware of the personal action at issue.  Accordingly, since the complaint was not timely filed an investigation was not opened.  He provides documentation, dated 16 December 2014, wherein, through counsel, he requested reconsideration of his DODIG claim.  

   b.  On 30 January 2015, the Office of the IG advised the Board that their office conducted a diligent search, but found no IG records on the applicant.  There is no evidence of record and he did not provide sufficient argument or evidence showing he was unjustly or erroneously denied the protection as a whistleblower.  

   c.  The ABCMR has no authority to "overturn" a decision by the DODIG to dismiss the applicant's claim for being untimely.  The ABCMR, however, may consider independently Whistleblower Protection Act claims and, having done so in this case, has determined the applicant's many and varied claims of error do not support a claim for reprisal.  As a result, there is no basis for amendment of his whistleblower IG complaint filed on 26 September 2012.  

   d.  It is noted that the ABCMR does not establish Army or DOD policy; claims based on what an applicant thinks the rules or regulations should be are generally denied for that reason.  His contention that he should be forgiven for an untimely DODIG filing does not excuse the fact that he did not comply with established policy and submitted his complaint after the established time period.  

4.  With regard to restoration of his service record to show he was present for duty from 21 June through 17 July 2012:

   a.  The available evidence shows he was in pre-trial confinement from 21 June through 17 July 2012.  Based on his confinement, he lost pay and benefits during that period as required by DoD regulations.  Notwithstanding his contentions that the charges were later dismissed, the fact remains he had time lost due to civilian confinement during this period of active duty.  

   b.  Therefore, there is insufficient evidence to support granting the requested relief.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the entry "No" in Part IVb.2. (Physical) of the contest OER;

	b.  showing the entry "Yes" in Part IVb.2 (Physical) of the contested OER; and

   c.  deleting the word "twice" in Part V of the contested OER. 
   
2.  The Board determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the contested OER, deletion of the elimination action, amendments to his whistleblower IG compliant and restoration of time lost due to his civilian confinement.


      _______ _   _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)                                         AR20140021703





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140021703



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1