BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20150001022 


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 Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) report of investigation (ROI) and associated DA Form 67-9 (Officer Evaluation Report (OER)) for the period 20 March 2012 through 19 March 2013 (hereafter referred to as the contested OER) from his official military personnel file (OMPF).

2.  The applicant states:

* he has exhausted all administrative forms of redress for the contested OER
* he is deployed to Kuwait in support of Operation Enduring Freedom
* he is a strong candidate for the Selective Early Retirement Board pending approval by the Secretary of the Army
* the contested OER and ROI have caused him to be non-selected for promotion and have put him at high risk for early retirement
* removal of the documents would enable subsequent boards to make a more accurate assessment of his suitability for continued service to this great Nation
* on 2 April 2013, the contested OER and ROI were reviewed by a show-cause board and that board specifically found the allegations were not supported by the preponderance of the evidence 
* he has received two OERs and successfully passed all Army Physical Fitness Tests (AFPTs) and Army Body Composition Program screenings since filing of the contested OER and ROI
* his Medical Protection System (MEDPROS) updates continue to be completed by qualified medical professionals
* his achievements since imposition of the contested OER should be noted
* the statement from the Army civilian, which was critical to support the ROI, was found not to exist

3.  The applicant provides:

* self-authored memorandum to the Department of the Army Suitability Evaluation Board, dated 13 November 2014
* three memoranda of support
* two DA Forms 705 (APFT Scorecard)
* DA Form 5500 (Body Fat Content Worksheet)
* six DA Forms 67-9
* Army Regulation 15-6 Investigation Report
* Army Special Review Board Proceedings, Docket Number AR20130009913, dated 25 July 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 14 May 1989.  He was subsequently promoted to lieutenant colonel on 1 November 2007.

2.  On 10 January 2012, the Department of the Army Adjutant General appointed an investigation officer (IO) under the procedures of Army Regulation 15-6 to conduct an informal investigation into allegations against the applicant for wrongfully directing an Army civilian to improperly administer his APFT and making a false weight entry into MEDPROS.

3.  On 24 January 2012, the IO concluded the investigation and submitted the following report on 27 January 2012:

	a.  Findings:

		(1)  The applicant wrongfully directed an Army civilian to improperly administer his 2 June 2011 AFPT.  He attempted to repeat this action for his December 2011 AFPT but was corrected by a noncommissioned officer.

		(2)  The applicant wrongfully entered information into MEDPROS by changing his 10 September 2010 Physical Health Assessment (PHA) weight from 200 pounds to 195 pounds.

	b.  Additional Issues Uncovered by the IO:

		(1)  The applicant knowingly falsified his DA Form 705 on 2 June 2011.

		(2)  The applicant attempted to falsify his DA Form 5500 on or about 29 June 2011.

		(3)  The applicant violated Army Regulation 600-9 (The Army Body Composition Program).

		(4)  The applicant falsified his OER on 22 June 2011 certifying his weight as 194 pounds when his most recent PHA reflected 200 pounds and which he previously altered to 195 pounds into MEDPROS on 28 February 2011.

		(5)  The applicant falsified his Fiscal Year 2011 My Board File.

	c.  Recommendations:

		(1)  relieve the applicant from command,

		(2)  issue the applicant a relief-for-cause OER, and

		(3)  issue the applicant a general officer memorandum of reprimand (GOMOR).

4.  On 12 February 2012, the Department of the Army Adjutant General approved the IO's recommendations subject to the following:

	a.  He directed referral of a copy of the investigation to the applicant for review and comment under the provisions of Army Regulation 600-20 (Army Command Policy), paragraph 2-17b, and Army Regulation 15-6, paragraph 1-9c, pending his request to the Commanding General, U.S. Army Human Resources Command (HRC), for approval of the applicant's relief for cause.

	b.  He deferred his decision regarding issuance of a GOMOR until the applicant's due process was completed.

5.  On 2 March 2012, the applicant responded to the Army Regulation 15-6 investigation.  He acknowledged he exercised poor judgment in terms of failing to make himself an expert in the technical requirements associated with the Army civilian's participation with both the AFPT and MEDPROS issues associated with the investigation.  He further stated:

* he had no motivation or specific reason as to why he would intentionally manipulate or cheat on his AFPT and he continues to stand ready to immediately prove his physical fitness
* he did not intentionally or willfully enter inaccurate data into MEDPROS
* he would not intentionally misrepresent himself by falsifying his DA Form 705 and put his integrity at risk
* the DA Form 5500 reflected that he was in compliance with Army standards with no indication of fabrication on his part
* the allegation of falsifying his OER covering the period ending 11 June 2011 and his My Board File is counter to his integrity and reputation as a commissioned officer and unit commander
* he was not aware of any concerns regarding his ability to command up until the November 2011 survey had results that were suspect

6.  On 12 March 2012, the Department of the Army Adjutant General approved the following IO's findings upon completion of the Army Regulation 15-6 investigation and the applicant's rebuttal:

	a.  The applicant did wrongfully direct an Army civilian to improperly administer his APFT.

	b.  The applicant did wrongfully enter a false weight entry into MEDPROS.  The weight change did not put him in compliance with Army weight standards for his age and height since he still had to be taped.

	c.  On 2 June 2011, the applicant did enter the incorrect weight on a 
DA Form 705.

	d.  On or about 29 July 2011, the applicant requested an Army civilian to complete a DA Form 5500 without actually conducting a height, weight, and tape test by calling the unit and giving the civilian his height and weight and requesting that the civilian complete the form.  The DA Form 5500 completed on 1 August 2011 was ultimately completed improperly since only a tape test was completed without a height or weight measurement.

	e.  The applicant certified the incorrect weight when he signed his OER covering the period ending 11 June 2011 and certified his My Board File on 4 February 2011.

	f.  Individuals in the applicant's chain of command were aware of the improperly conducted AFPT on 2 June 2011 and were aware of the false weight entry into MEDPROS.  The chain of command documented the two incidents by memoranda for record and took some corrective action, but no one reported the incidents to the U.S. Military Postal Service Agency leadership.  Unit members were disappointed with the command of the Joint Military Postal Activity-Pacific (JMPA-PAC) and certain unit members were concerned about reprisal from the applicant.

7.  The applicant was issued a relief-for-cause OER for the period 12 June 2011 through 19 March 2012.

	a.  Part IVa (Army Values) shows "No" markings for the Honor, Integrity, Selfless-Service, and Duty blocks.

	b.  Part IVb (Leader Attributes/Skills/Actions) shows "No" markings for the Mental, Conceptual, and Physical blocks.

	c.  Part IVb3 (Actions – Leadership) shows "No" markings for the Decision-Making and Building blocks.

	d.  Part V (Performance and Potential Evaluation) shows "Unsatisfactory Performance, Do Not Promote."

	e.  Part Vb (Comment on the Specific Aspects of the Performance) states "…[Applicant] was relieved from Command of the JMPA-PAC on 19 March 2012 for wrongfully directing subordinate personnel to improperly administer and document his official Army Physical Fitness Test and height/weight data.  These events demonstrated poor judgment and a failure to execute Command duties and responsibilities in accordance with regulatory requirements."

	f.  Part Vc (Comment on Potential for Promotion) states "Officer does not demonstrate potential for promotion."

	g.  Part VII (Senior Rater – Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) shows "Do Not Promote."

	h.  Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) shows "Below Center of Mass – Retain."

	i.  Part VIIc (Comment on Performance/Potential) states "…I directed the relief for cause from Command when [Applicant] wrongfully directed subordinate staff members to improperly administer and document his AFPT, height and weight information.  His actions caused me to lose faith and confidence in his ability to make sound decisions and lead his unit.  Do not promote or select for any future Army schooling.  Rated officer did not comply with suspenses to provide a signed copy of his evaluation, therefore it is processed without signature."

8.  On 7 December 2012, HRC directed the applicant to show cause for retention on active duty because of misconduct, moral or professional dereliction.

9.  On 31 January 2013, the applicant's commanding general appointed a board of inquiry (BOI).

10.  On 11 February 2013, the applicant was notified to appear before a BOI.  He acknowledged receipt of the notification on 22 February 2013.

11.  On 3 April 2013, the BOI found there was insufficient evidence to prove the applicant engaged in misconduct, moral or professional dereliction.  The BOI recommended the applicant's retention on active duty without reassignment.

12.  On 23 April 2013, the findings of the BOI were approved and the elimination action was closed.

13.  On 14 May 2013, HRC forwarded the applicant's appeal of the contested OER to the Army Special Review Board (ASRB).

14.  On 25 July 2013, the ASRB unanimously denied the applicant's appeal of the contested OER.

15.  The applicant provided a copy of his memorandum to the Department of the Army Suitability Evaluation Board, dated 13 November 2014, subject:  Request for Removal of Army Regulation 15-6 ROI and OER dated 19 March 2012 for [Applicant], wherein he described his accomplishments since the Army Regulation 15-6 investigation and contested OER.  He also provided extracts of his OMPF and three memoranda of support from two superior officers in his rating chain and his mentor.  These memoranda attest to his character as an officer.

16.  The contested OER is filed in the performance folder of his OMPF.

17.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.

	a.  Paragraph 4-7 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

	b.  To justify deletion or amendment of a report, the applicant 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.

	c.  Chapter 6 prescribes the policies and procedures pertaining to managing the OER redress program.  Paragraph 6-11a states the burden of proof rests with the applicant to justify deletion or amendment of a report.  The applicant 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 of administrative error or factual inaccuracy.

18.  Army Regulation 600-9 establishes policies and procedures for implementation of the Army Weight Control Program.  Soldiers are required to meet the prescribed body fat standard, as indicated in appendix B.  Soldiers will be screened every 6 months, at a minimum, to ensure compliance with this regulation.  Commanders are authorized to use the weight for height table in appendix B as a screening tool to expedite the semi-annual testing process.  If Soldiers do not exceed the authorized screening table weight for their age and measured height, no body fat assessment is required.

19.  Army Regulation 350-1 (Army Training and Leader Development) prescribes policies, procedures, and responsibilities for developing, managing, and conducting Army training and leader development.  Soldiers must meet the physical fitness standards set forth in this regulation and Training Circular 
3-22.20 (Army Physical Readiness Training) as measured during the APFT.

20.  MEDPROS is designed to track immunization, medical readiness, and deployability data for all Active and Reserve Component Soldiers of the Army as well as Army civilians, contractors, and others.

21.  Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  This regulation or any part of it may be made applicable to investigations or boards that are authorized by another directive, but only by specific provision in that directive or in the memorandum of appointment.  In case of a conflict between the provisions of this regulation, when made applicable, and the provisions of the specific directive authorizing the investigation or board, the latter will govern.  Even when not specifically made applicable, this regulation may be used as a general guide for investigations or boards authorized by another directive, but in that case its provisions are not mandatory.  The primary function of any investigation or board of officers is to ascertain facts and to report them to the appointing authority.  It is the duty of the IO or board to ascertain and consider the evidence on all sides of each issue thoroughly and impartially and to make findings and recommendations that are warranted by the facts and that comply with the instructions of the appointing authority.

22.  Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 
4-6, provides guidance for BOI's and states the purpose of a BOI is to give the officer a fair and impartial hearing to determine if the officer will be retained in the Army.  Through a formal administrative investigation conducted under Army Regulation 15-6 and this regulation, the BOI establishes and records the facts of the respondent'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.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for removal of the ROI and contested OER from his OMPF.

2.  Although a BOI will make a separate finding on each factual allegation, the BOI's purpose and recommendations are limited to retention or elimination.  The BOI is not an appeals process for evaluations.

3.  Sufficient evidence was presented showing the applicant wrongfully entered a false weight entry into MEDPROS and he wrongfully directed an Army civilian to improperly administer his AFPT.  As a result of his actions, the applicant received a relief-for-cause OER which was a fair, objective, and valid appraisal of the applicant's performance during the period in question.  There is no evidence and the applicant provided insufficient evidence to show his rater and senior rater did not comply with the regulatory requirements for evaluating him in a fair and unbiased manner.

4.  The applicant has continued to serve honorably and without incident.  Nevertheless, the Army has an interest in maintaining the integrity of its records.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  The fact that these documents have affected his career opportunities is a natural outcome of his behavior/
performance.  There is a reluctance to remove adverse information from an OMPF when it was not erroneously filed.

5.  In view of the foregoing, there is an insufficient basis upon which to grant the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X______  __X______  __X__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined 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)                                         AR20150001022



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150001022



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1