IN THE CASE OF: BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150012066 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: 11 August 2016 DOCKET NUMBER: AR20150012066 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: 11 August 2016 DOCKET NUMBER: AR20150012066 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 reconsideration of his request that a Relief for Cause DA Form 2166-6 (Enlisted Evaluation Report (EER)) covering the period June 1987 through September 1988 (hereinafter referred to as the contested EER) be removed from his Official Military Personnel File (OMPF). 2. The applicant states that information contained in the contested EER was inappropriate because it was obtained by coercion, force, and deceit. He states this injustice has been continually bothering him because the system of justice and fairness has not worked for him in resolving this issue. He also states that the Nation is built on justice, integrity, truth, and honor, which does not have a time limit. He adds that he suffers from post-traumatic stress disorder (PTSD) and this issue is more troubling than his medical condition. 3. The applicant provides a self-authored statement (summarized above). CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC91-08756 on 11 September 1991. 2. The applicant was honorably retired from active duty on 31 December 1992 and placed on the retired list in the rank of sergeant first class (SFC)/pay grade E-7 effective 1 January 1993. 3. A review of the performance folder of the applicant's OMPF revealed a copy of the contested EER covering the period June 1987 through September 1988. It shows he was assigned to the U.S. Army Recruiting Battalion, Philadelphia, PA. It also shows in: * Part I (Administrative Data) – * block h (Code / Type of Report): 6 / Relief * block j (Rated Months): 9 * block k (Nonrated Months): 7 * Part II (Duty Description) – * block a (Principal Duty Title): Station Commander * block b (Duty Military Occupational Specialty): 00R4O (Recruiter) * Part III (Evaluation of Professionalism and Performance) – * block c1 (Rater's Evaluation): "Rater departed during adjudication process – evaluation omitted by direction of Commanding General, Total Army Personnel Agency, 9 December 1988." * Block c2 (Indorser's Evaluation): "SFC ___ was commander of the largest recruiting station in the company. He carried the largest mission, had a less than adequate facility, and had a young and inexperienced field force. He was faced with a tremendous leadership challenge. On the surface SFC ___ appeared to meet the challenge head on and his station consistently accomplished its assigned objectives. On many occasions, his station's overproduction carried the entire company to success. Unfortunately, an investigation into his recruiting practices concluded that SFC ___ was guilty of taking shortcuts to established regulatory procedures. Although SFC ___ was the consummate team player and his intentions may have been good, his methods were not. He could not be allowed to remain in a position where his indiscretions could impact on applicants or influence subordinate Soldiers. SFC ___ has been notified of the reasons for his relief." * Part V (Authentication) – * Rater: blank (no entries) * Rated Soldier: Applicant verified the Administrative Data and signed the EER on 29 October 1988 * Indorser: Captain J___ K. F____, Company Commander, signed on 9 November 1988 * Reviewer: Lieutenant Colonel R___ A. J____, Battalion Commander, signed on 9 November 1988 * Part VI (Score Summary), Report Score: 116 * Part VII (Military Personnel Office Certification) – * block a (Soldier's Copy):  Mailed to Soldier, 10 December 1988 * block c (Number of Inclosures): 1 * Inclosure 1 to the contested EER: Headquarters, U.S. Army Recruiting Command, Fort Sheridan, IL, memorandum, dated 7 September 1988. Major General T___ P. C____ wrote: "As the Commanding General, U.S. Army Recruiting Command, I reviewed the report of investigation concerning improper recruiting practices, dated 16 May 88, recommendations of the chain of command, and SFC ___'s rebuttal thereto in accordance with Army Regulation 600-37 [Unfavorable Information]. I have determined that the preponderance of the evidence establishes that SFC ___ encouraged three applicants to conceal potential medical disqualifications and one applicant to provide incomplete information concerning prior Armed Services Vocational Aptitude Battery testing. Such conduct by SFC ___ is in violation of U.S. Army Recruiting Command Regulation 601-45 [Recruiting Improprieties Policies and Procedures] and Article 92, Uniform Code of Military Justice. This compromise of his personal integrity and professional ethics renders SFC ___ unsuitable for recruiting duty. SFC ___ has been notified of the reason for his relief. I direct this document be made an enclosure to the relief-for cause noncommissioned officer [NCO] evaluation report." 4. On 31 December 1990, the Chief, Records Service Division, notified the applicant that the Department of the Army, Enlisted Special Review Board (ESRB) reviewed the information he submitted and his OMPF, and determined that the evidence did not justify altering or withdrawing the contested EER. a. A review of the ESRB Record of Proceedings shows the applicant submitted to the battalion commander a letter of rebuttal of the Report of Investigation, dated 25 May 1988, and a letter of rebuttal of the recommendation for relief, dated 28 June 1988. b. The ESRB ROP also shows, in pertinent part, "In this case, the Board [ESRB] is struck by the total lack of credible, independent, corroborating evidence of sufficient stature, such as the findings of a duly constituted AR 15-6 [Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers)] investigation, the results of a Commander's Inquiry pursuant to paragraph 2-18, AR 623-205 [Enlisted Evaluation Reporting System], or other findings of impartial proceedings to refute the evaluations of the rating officials. The ESRB notes that all the supporting documentation submitted by the appellant is either irrelevant, not convincing or lacks the same or equivalent perspective of the rating officials. Such evidence lacks the necessary force to counter the official ratings, amounting in essence to the appellant's word against that of the rating officials." 5. On 11 September 1991, the ABCMR considered the applicant's request for removal of the contested EER based on the contention that it was "unjust in that the decision to relieve him from his duties as the commander of a recruiting station was made based on false and coerced statements rather than facts." a. The Board considered the applicant's petition and evidence, his military personnel records, and an ESRB advisory opinion. b. The Board found that the contested EER appeared to represent a fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the period of time in question. c. The Board determined that the applicant failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice. d. The Board found no basis for granting the applicant's request. REFERENCES: 1. Army Regulation 623-205, in effect at the time, prescribes the policies and tasks for the Army's Evaluation Reporting System and includes reporting systems for officers. It includes policy statements, operating tasks, and rules in support of operating tasks. a. Chapter 3 (Army Evaluation Principles), paragraph 3-1 (Role of the rating official), shows that rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army. Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, an evaluation will give full credit to the rated individual for their achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, and Headquarters, Department of the Army selection boards and career managers can make intelligent decisions. b. Chapter 4 (Appeals) emphasizes the fact that an erroneous evaluation report should be corrected as soon as possible. Substantive appeals must be submitted within 5 years of the evaluation report "THRU" date. Appeals must be processed through the HQDA, Evaluations and Appeals Branch, prior to submission to the ESRB. (1) The burden of proof rests with the appellant to produce evidence that establishes clearly and convincingly that (1) the presumption of regularity should not be applied to the report under consideration, and (2) action is warranted to correct a material error, inaccuracy, or injustice. (2) Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. Failure to submit an appeal within this time frame will require the appellant to submit their appeal to the ABCMR. 2. Army Regulation 640-10 (Individual Military Personnel Records), in effect at the time, provides policies, operating tasks, and steps governing the OMPF. a. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. Once placed in the OMPF, the document becomes a permanent part of that file. b. The authorized documents list provides guidance for filing documents in the OMPF. It shows the DA Form 2166-6 will be filed in the performance folder of the OMPF. 3. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. Paragraph 7-2 (Appeals for removal of OMPF entries) shows that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 4. AR 15-185 (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant's request for reconsideration to remove the contested EER from his OMPF as a matter of justice because it was based on information that was obtained by coercion, force, and deceit was carefully considered. 2. The Board decides each case on the evidence of record and begins its consideration of the case with the presumption of administrative regularity. The Board is not an investigative agency and the applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. The applicant failed to provide a copy of the report of investigation or any relevant documentary evidence to substantiate his claims relating to the manner or method(s) the information was obtained during the investigation that served as the basis for the rating official's ratings/assessments on the contested EER. Moreover, a review of all of the available evidence failed to show any such documentary evidence was previously provided to support his contentions. 4. The contested EER is properly filed in the performance folder of the applicant's OMPF. 5. An evaluation report accepted for inclusion in the rated NCO's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. In view of all of the foregoing, there is insufficient evidence to refute the presumption of administrative regularity with respect to the contested EER. 6. By regulation, in order to remove a document from the OMPF, there must be compelling evidence to support its removal. The applicant failed to submit evidence of a compelling nature to show that the EER filed in the performance folder of his OMPF is untrue, in error, or unjust. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012066 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012066 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2