IN THE CASE OF: BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150010641 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ____x___ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150010641 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. IN THE CASE OF: BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150010641 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 a DA Form 67-9 (Officer Evaluation Report (OER)) for the period from 10 November 2012 to 9 November 2013 (hereafter referred to as the contested OER) be removed from his official military personnel file (OMPF). 2. The applicant states the contested OER was based on unproven derogatory information in violation of Army Regulation (AR) 623-3 (Evaluation Reporting System), paragraph 3-19c, which specifically prohibits the inclusion of unverified derogatory information from being included in evaluation reports such as "charges that are later dropped." All charges against him relating to this matter were later dropped and officially withdrawn and dismissed by the U.S. Army Forces Command (FORSCOM) Commanding General (CG) on 25 September 2014. a. The following statements by his rater and senior rating in the contested OER refer to unproven derogatory information: However, [the applicant's] conduct during this rated period eclipsed his performance. Based on two completed investigations, [the applicant] wore the Master Parachutist Badge which he did not earn; listed the [Expert Infantryman Badge (EIB)], [Expert Field Medical Badge (EFMB)], and Aviators Badge in his [Officer Record Brief (ORB)] but had no supporting documents, and was untruthful to investigators about attending Jumpmaster school. While [the applicant's] duty performance was good, his conduct overshadowed his performance. Based on two completed investigations, he misled investigators about his qualifications to wear the Master Parachutist Badge, which included the requirement to attend and graduate from Jumpmaster School; he also had multiple entries on his ORB for awards and badges with no supporting documentation. Due to his lack of integrity, I do not recommend him for promotion to [lieutenant colonel]. b. On 14 November 2013, he was falsely accused of wearing unauthorized awards. This action initiated court-martial charges against him that were later withdrawn and dismissed "without prejudice" by the FORSCOM CG on 25 September 2014. This removal action clearly settled this matter in his favor and he was honorably retired from the Army shortly thereafter. c. On 16 December 2014, the contested OER was inserted into his OMPF by his military raters stating that he had been found guilty of these charges that had been previously withdrawn and dismissed by the FORSCOM CG. This action damaged his military and civilian reputation both personally and professionally. 3. The applicant provides: * a memorandum, dated 25 September 2014, from the CG, Headquarters (HQ), Fort Bragg, NC * HQ, Fort Bragg General Court-Martial Order Number 18, dated 21 October 2014 * the contested OER * an email, dated 17 December 2014, from U.S. Army Human Resources Command (HRC) * an excerpt from AR 623-3 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 31 March 1978, the applicant enlisted in the U.S. Army Reserve (USAR). He attended initial active duty for training during the period 14 April 1978 through 1 September 1978. His DD Form 214 (Report of Separation from Active Duty) with an effective date of 1 September 1978, shows he was awarded the military occupational specialty (MOS) 91B (Medical Specialist). There is no evidence he completed a Special Forces (SF) qualification course during this period. 3. A National Guard Bureau (NGB) Form 22, dated 22 August 1983, as corrected on 19 August 1986, shows he served in the Alabama Army National Guard from 10 September 1979 through 24 September 1983. He was discharged in the grade of first lieutenant. The NGB Form 22 shows he completed airborne training and medical specialist training in August 1978. His MOS was corrected to show 11A (Infantry Officer) and 18A (SF Officer) and he was awarded the Parachutist Badge. There is no evidence he completed a SF qualification course during this period. 4. The applicant continued to serve in officer status in the Army National Guard and the U.S. Army Reserve (USAR). On 1 May 2007, he was ordered to active duty from the USAR Control Group (Reinforcement) for 3 years with an end date of 30 April 2010. He was promoted to major with an effective date of 17 July 2003. On 30 March 2010, his orders to active duty were amended to show his end date as 20 December 2031 and his component as Regular Army. 5. U.S. Army John F. Kennedy Special Warfare Center and School (USAJFKSWCS), Fort Bragg, NC, Permanent Orders 120-01, dated 30 April 2009, awarded the applicant the Special Forces (SF) Tab for service from 4 July 1978 through 24 September 1983. The reason on the orders is stated as SF qualification course. The orders were signed by Master Sergeant M____, Sergeant Major, G1. 6. On 26 May 2013, an informal AR 15-6 investigation was initiated to investigate allegations that the applicant was wearing or claiming various badges, awards, and/or decorations that he was not entitled to under Army regulations. On 12 June 2013, the investigating officer (IO) submitted his findings and recommendations to FORSCOM. The IO found: a. The applicant wears a Special Forces (SF) Tab on his Army combat uniform and a SF Tab is annotated on his Officer Record Brief (ORB). The evidence does not support the applicant's wear/award of the SF Tab. (1) Email from Lieutenant Colonel (LTC) G____, Chief, SF Proponent, USAJFKSWCS stated his office conducted a search for orders awarding the SF Tab to the applicant and found none for the 30 April 2009 dated on the orders. (2) Per a telephone conversation with LTC G____ on 13 June 2013, he reiterated his belief that the applicant did not attend a qualifying course and should not be awarded the SF Tab. (3) LTC G____ provided a copy of an approved order from November 2009 and there were differences in the order numbers and distribution. (4) While the applicant's orders signature block was from an individual who worked in the USAJFKSWCS command, LTC G____ brought into question activities by that individual during that timeframe. (5) For Reserve component (RC) SF qualification programs, the SF Tab may be awarded to all personnel who successfully complete a RC SF qualification program and who were subsequently awarded by component authority a special qualification identifier (SQI) "S" (Special Operations Support Personnel) or "3" in MOS 11B, 11C, 12B, 05B, 91B or additional skill identifier (ASI) "5G" or "3". b. The evidence does not support the applicant's award of the Master Parachutist Badge. The IO reviewed a 12 June 2012 order awarding the applicant a Master Parachutist Badge, his jump log, and his leave and earnings statements (LES) covering the periods when he alleged that he jumped. The IO did not find any evidence in the applicant's records showing that he attended a Jumpmaster Course or any refresher/recertification training in spite of length periods between jumps over a 19-year span. Numerous LESs for the time frames involved show the applicant was not in a paid jump status for the months his jump log alleges that he jumped or that the dates of his jumps did not coincide with drill weekends or were not otherwise consistent with his duty status or location. c. The evidence does not support the awards of the EFMB or the EIB. A review of the applicant's ORB dated 24 January 2012 and 17 October 2012 shows the EFMB or the EIB were not shown on the ORB, dated 24 January 2012, but were added to the ORB, dated 17 October 2012. The IO found no documentation in the applicant's OMPF supporting the award of either the EFMB or the EIB. d. The evidence does not support the Aviators Badge. The applicant's record contains certificates of training from 1995 which show completion of courses through the Army Institute for Professional Development covering the periods May, August, October, and November 1995. The certificates appear to be distance education. There is no award of the MOS 93P annotated in the applicant's records. The Aviators Badge may be awarded upon successful completion of formal advanced individual training in MOS 93 series. e. The IO noted that in January 2007 the applicant had been denied the SQI "S" or "3" because the evidence did not show that he completed a SF qualification course. f. The IO attempted to interview the applicant to gain clarification of the allegations against him. When the IO presented the applicant a copy of his questions, the applicant quickly reviewed the questions and stated that he would not answer them, ending the interview. 7. The IO recommended: a. A complete audit by qualified persons at FORSCOM or HRC if possible of the applicant's OMPF and any other available military personnel records. While the applicant may be entitled to many awards, badges, and decorations there are enough irregularities in his records to question the validity of his OMPF as currently on record. b. The Commander ordered the applicant to refrain from wearing the SF Tab, Master Parachutist Badge, Expert Field Medical Badge, the Expert Infantryman Badge, and AVB until such time as he can provide adequate proof that he is entitled to wear those badges or the audit recommended above is complete. 8. On 27 June 2013, HRC notified the applicant he was not selected for promotion by the Department of the Army, Fiscal Year 2013, LTC, Maneuver, Fires and Effects (MFE), Operations Support (OS), and Force Sustainment (FS), Promotion Selection Boards. The promotion board's report was approved in May 2013 and he was to be separated no later than 1 December 2013. He was advised the Department of the Army, Temporary Early Retirement Authority (TERA) offers officers who have twice failed selection for promotion to the next grade and have at least 15, but less than 20 years of active federal service by their established mandatory separation date, the opportunity to apply for early retirement. 9. On 19 February 2014, the USAJFKSWCS issued Orders 50-01 revoking USAJFKSWCS Permanent Order Number 120-01, dated 30 April 2009, pertaining to the applicant's award of the SF Tab. 10. On 6 March 2014, the following charges pertaining to the applicant were referred to a general court-martial: * making a false official statement that he had attended Jumpmaster Training * wrongfully and dishonorably wearing six overseas service bars on his uniform * wrongfully and dishonorably wearing five overseas service bars on his uniform * wrongfully and without authority wearing the Master Parachutist Badge on his uniform * two specifications of wrongfully and without authority wearing the Senior Parachutist Badge on his uniform 11. The contested OER was signed by his rater on 27 March 2014 and by his senior rater on 24 April 2014. The DA Form 67-9 indicates it was a referred report. The applicant did not sign the OER or provide any comments a. In Part IVa (Army Values) the rater placed an "X" in the "NO" blocks for Honor, Integrity, and Duty. The rater placed an "X" in the "YES" blocks in the remaining blocks. b. In Part IVb (Leader Attributes/Skills/Action) the rater placed an "X" in the "NO" blocks for Conceptual, Decision-Making, and Assessing. The rater placed an "X" in the "YES" blocks in the remaining blocks. c. In Part V (Performance and Potential Evaluation) the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block. His comments included: [The applicant] was a solid duty performer. [The applicant] successfully led FORSCOM participation in the Army Capabilities and Integration Center's efforts to revise how the Army identifies capability gaps and recommends solutions; [the applicant] played a key role in supporting the process that will define the design and capabilities of the future force. As the deputy for the materiel team, he attended weekly General Officer updates and provided thorough executive summaries that accurately captured requirements and suspenses. He assisted in the coordination and FORSCOM participation in the Army Requirements and Resourcing Board, Mobilization Readiness and Movement Meetings, and Capability Needs Analysis action officer and Council of Colonel working groups. However, [the applicant’s] conduct during this rated period eclipsed his performance. Based on two completed investigations, [the applicant] wore the Master Parachutist Badge which he did not earn; listed the EIB, EFMB, and Aviators Badge in his ORB but had no supporting documents, and was untruthful to investigators about attending Jumpmaster school. d. In Part VII (Senior Rater) the senior rater placed an "X" in the "Do Not Promote" block in his evaluation of the applicant's promotion potential. His comments in Part VIIc (Comment on Performance/Potential) included: While [the applicant's] duty performance was good, his conduct overshadowed his performance. Based on two completed investigations, he misled investigators about his qualifications to wear the Master Parachutist Badge, which included the requirement to attend and graduate from Jumpmaster School; he also had multiple entries on his ORB for awards and badges with no supporting documentation. Due to his lack of integrity, I do not recommend him for promotion to LTC. [The applicant] did not provide a support form for consideration. [The applicant] refused to sign this OER. 12. On 25 September 2014, Major General (MG) C____, CG, HQ, Fort Bragg, Fort Bragg, NC, withdrew and dismissed without prejudice the charges and specifications pertaining to the applicant referred for general court-martial on 6 March 2014. 13. On 25 September 2014, the MG C____, CG, HQ, Fort Bragg, NC, issued the applicant a general officer memorandum of reprimand (GOMOR). The issuing authority (IA) stated: Two investigations conducted pursuant to Army Regulation 15-6 [Procedures for Investigating Officer and Boards of Officers] and to Article 32, Uniform Code of Military Justice (UCMJ), revealed that you wore the following items without meeting regulatory criteria for their wear: the Special Forces beret and tab, master/senior parachutist badges and, variously, five or six overseas service bars on your uniform, rather than the three you are authorized. You are hereby reprimanded. The facts established in these investigations, even when viewed in the light most favorable to you, demonstrate that you lack diligence and a sense of personal responsibility. As a commissioned officer with decades of military experience, you are charged with understanding your entitlements to insignia. The fact that you convinced a clerk to process your request for the retroactive award of a Special Forces tab does not relieve you from your own independent responsibility to assure you meet the regulatory criteria. Your poor judgment causes me to doubt your ability to lead Soldiers. 14. HQ, Fort Bragg General Court-martial Order Number 18, dated 21 October 2014, shows all charges were withdrawn by the convening authority. The applicant was arraigned on 8 July 2014 and the proceedings were terminated by the convening authority. The charges and their specifications were withdrawn on 25 September 2014. 15. On 24 October 2014, the applicant's attorney submitted a response to the GOMOR requesting the GOMOR be withdrawn or, in the alternative, that it be filed in his local file. The attorney stated: a. There was no evidence that the applicant acted without integrity. No evidence produced by the AR 15-6 or the Article 32 pretrial investigations showed the applicant acted in any manner to deceive or commit fraud with regards to his military entitlements and insignia or otherwise. Any conclusion made or alluded to in this regard was unfounded. b. The applicant had been fighting these allegations for almost 2 years. Through two investigations and referred court-martial charges, the applicant has suffered the anxiety of an unknown future. Along the way, the Government struck some charges from the charge sheet and ultimately dropped the case a few months before trial. 16. On 27 October 2014, the applicant's company commander recommended the GOMOR be filed in the applicant's OMPF. The commander stated the fact that the applicant wore insignia and badges he was unauthorized was in itself an act that deserves the GOMOR be filed in his OMPF. His actions in convincing a clerk to assist in this deception further highlights his lack of integrity and questionable leadership. 17. On 27 October 2014, the applicant's battalion commander recommended the GOMOR be filed in the applicant's OMPF. The commander stated he could not stress enough the applicant's wonton disregard for both his personal and professional integrity married with his questionable ethics as a commissioned officer necessitated filing the GOMOR in his OMPF. 18. On 31 October 2014, the IA considered the GOMOR, the circumstances of the misconduct, and all matters submitted by the officer in defense, extenuation, or mitigation, along with recommendations of the subordinate commanders. The IA directed the GOMOR be placed permanently in the applicant's OMPF. 19. On 3 December 2014, the applicant's senior rater submitted a memorandum to HRC indicating he had received an email on 26 March 2014, from the applicant in which he stated "I do not agree with nor will I sign this Officer Evaluation Report. Please see attached supporting documents." The attached documents were not filed with the contested OER in his OMPF. 20. On 10 February 2015, the applicant requested early retirement under the provisions of TERA. 21. On 23 February 2015, the Deputy Assistant Secretary of the Army (DASA), Review Boards (RB), notified HRC that the Army Grade Determination Review Board (AGDRB) reviewed the voluntary retirement application submitted by the applicant and the request by HRC for a grade determination. The DASA (RB) directed that if his retirement was approved he be placed on the Retired List in the grade of O-3 (captain). The DASA (RB) determined his service in the grade of O-4 (major) was not satisfactory. 22. On 28 February 2015, he was retired by reason of voluntary early retirement. His DD Form 214 (Certificate of Release or Discharge from Active Duty), with a separation date of 28 February 2015, does not show he was awarded the Master Parachutist Badge, the SF Tab, the EIB, or the Aviator Badge. The DD Form 214 does show he was awarded the EFMB. 23. On 26 October 2015, a DD Form 215 (correction to DD Form 214) was issued deleting the EFMB from the applicant's DD Form 214 with a separation date of 28 February 2015. REFERENCES: 1. AR 600-8-22 provides the awards policy, criteria, and administrative instruction concerning induvial and unit military awards. It states the SF Tab is awarded by orders for successful completion of USAJFKSWCS approved schooling for both the active Army and Reserve component and an authorized unit administered SF qualification program. For active component institutional training prior to 1 January 1988, successful completion of an approved program of instruction for SF qualification in an SF Group who were subsequently award by competent authority the “S” special skill identifier for enlisted personnel or a “3” in Functional Area 18 for officers. For Reserve component SF qualification program, the SF tab may be awarded for successful completion of a program of instruction in accordance with U.S. Army Training and Doctrine Command (TRADOC) Regulation 135-5 or its predecessors. There are special provisions to award the SF Tab for wartime service through the year 1975. 2. AR 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. It 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. 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. 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, and counseling forms. 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. Paragraph 3-19 states any mention of unproven derogatory information in an evaluation report can become an appealable matter if later the derogatory information is unfounded. c. Paragraph 3-19b states that 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 (HQDA). d. 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. For all evaluation reports, if previously reported information later proves to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the evaluation report. e. Paragraph 3-34 states certain types of reports will be referred to the rated officer by the senior rater for acknowledgment and comment before they are sent to HQDA. These types of reports include: * any report with a performance and potential evaluation in Part Va of "Unsatisfactory performance. Do not promote" or narrative comments to that effect from any rating official * any report with a senior rater promotion potential evaluation of "Do Not Promote" in Part VIIa f. Paragraph 6-7a states an evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF is presumed to: * be administratively correct * have been prepared by the proper rating officials * represent the considered opinion and objective judgment of the rating officials at the time of preparation g. Paragraph 6-11 states that 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 appellant. h. Paragraph 6-11 further states that for a claim of inaccuracy or injustice of a substantive type in an evaluation report, evidence will include statements from third parties, rating officials or other documents from official sources. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered. 3. Title 10 United States Code, section 632(a) (10 USC 632(a)) states an officer of the Army who holds the grade of captain or major who has failed selection for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall if eligible for retirement under any provision of law, be retired under that law on the date requested by him and approved by the Secretary concerned. DISCUSSION: 1. USAJFKSWCS Permanent Orders 120-01, dated 30 April 2009, awarded the applicant the SF Tab for service from 4 July 1978 through 24 September 1983. a. The applicant's DD Form 214, dated 1 September 1978, and his NGB Form 22, dated 22 August 1983, do not show he completed a SF qualification course. b. During the AR 15-6 investigation the IO received email from the USAJFKSWCS wherein LTC G____ stated his office found no orders awarding the applicant the SF Tab. In a telephone conversation between the IO and LTC G____, LTC G____ reiterated his belief that the applicant did not attend a qualifying course and should not be awarded the SF Tab. LTC G____ also brought into question activities of the individual who signed the orders. 2. The derogatory statements contained in the applicant's contested OER were based on the findings of the AR 15-6 that was completed on 12 June 2013. The investigation was completed prior to the ending date of the contested OER. These statements are included as provided in paragraph 3-19b of AR 623-3. 3. Certain findings of the AR 15-6 were later referred to a general court-martial. The charges were later withdrawn by the CG and he issued the applicant a GOMOR. This does not show that the previously reported information in the AR 15-6 were later proven to be incorrect or erroneous. 4. OER's 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. 5. To support removal or amendment of a report, there must be evidence that clearly and convincingly establishes 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. The burden of proof rests with the appellant. 6. The applicant has not provided clear and convincing evidence the derogatory statements in the contested OER are incorrect or erroneous. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010641 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010641 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2