BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20160007228 BOARD VOTE: __x______ ___x____ ___x__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20160007228 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. removing and formally expunging any Academic Evaluation Report-related correspondence from the applicant's Official Military Personnel File (OMPF); b. removing and formally expunging the applicant's DA Form 67-6 (Officer Evaluation Report (OER)), covering the period 11 October 1968 through 28 February 1969, from his OMPF; and c. removing the OER-related correspondence, dated 21 December 1971 and identified as Documents Number 000652 and 000653, from his OMPF. ____________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. BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20160007228 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. This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the United States District Court for the District of Massachusetts. The Court orders the ABCMR to: a. remove and formally expunge the Plaintiff's (hereinafter referred to as the "applicant") adverse Officer Evaluation Report (OER), adverse Academic Evaluation Report (AER), and AER-related correspondence dated 1 August 1972; and b. reconsider two OER-related documents, addressed as documents numbered 652 and 653, and render a decision regarding whether the OER-related correspondence, dated 21 December 1971, should remain in the applicant's Official Military Personnel File (OMPF). 2. Provided are the following documents: a. Order of Partial Judgment and Remand in Civil Case 1:14-cv-10275-FDS, [Applicant], Plaintiff v. Secretary of the Army, Defendant, issued by the United States District Court for the District of Massachusetts on 13 April 2016. b. The electronic docket in Civil Case 1:14-cv-10275-FDS, issued by the United States District Court for the District of Massachusetts on 14 April 2016. c. Complaint for Declaratory and Injunctive Relief, filed in United States District Court for the District of Massachusetts on 6 February 2014. d. Amended Complaint for Declaratory and Injunctive Relief, filed in United States District Court for the District of Massachusetts on 24 February 2014. e. Answers of the Defendant, filed in United States District Court for the District of Massachusetts on 27 March 2015. f. Third Amended Complaint for Declaratory and Injunctive Relief, filed in United States District Court for the District of Massachusetts on 21 August 2015. g. A letter from the applicant, dated 23 July 2016. h. A letter from the Office of The Adjutant General, Washington, D.C., dated 21 December 1971, subject: Adverse Efficiency Report, identified as Document Number 000652 in the Order of Partial Judgment and Remand. i. An indorsement to the Adverse Efficiency Report letter of 21 December 1971, signed by the applicant and identified as Document Number 000653 in the Order of Partial Judgment and Remand. j. ABCMR Docket Number AR20140012021, dated 30 December 2014. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 5 August 1966 and was appointed as a Reserve commissioned officer of the Army on 16 June 1967. 2. The applicant served in the Republic of Vietnam from 15 November 1968 through 13 October 1971. He was promoted to captain on 16 June 1969. 3. The Office of The Adjutant General, Headquarters, Department of the Army, notified the applicant on 21 December 1971 that the subject OER, covering the rating period 11 October 1968 through 28 February 1969, was considered adverse (referred). a. The notification memorandum is identified as Document Number 000652 in both the provided evidence and the Order of Partial Judgment and Remand. b. The applicant acknowledged receipt of the notification memorandum; the acknowledgment indorsement is identified as Document Number 000653 in both the provided evidence and the Order of Partial Judgment and Remand. c. Both documents are filed in the applicant's OMPF. 4. The applicant was issued the subject AER on 18 December 1972. 5. The applicant was honorably released from active duty on 3 December 1973. He continued his service in the U.S. Army Reserve (USAR) and was honorably discharged from the USAR on 21 April 1985. 6. The applicant petitioned the ABCMR on multiple occasions for expunction of the subject OER and AER from his OMPF. The Board considered his petitions under Docket Numbers AR20070011022 and AR20080004001; however, in both instances, the Board denied his request for relief. 7. The applicant petitioned the United States District Court for the District of Massachusetts, seeking judicial review of ABCMR decisions related to his past requests. The Court remanded the case to the ABCMR on 10 July 2014, to consider multiple issues including the removal of the subject OER and AER from the applicant's OMPF. 8. The Board considered the remanded case on 30 December 2014, under Docket Number AR20140012021. In this case: a. The Board noted that a complete and thorough review of the applicant's hardcopy OMPF failed to reveal a copy of the subject OER covering the period 11 October 1968 to 28 February 1969. However, the Board also noted the availability of the subject OER when considered by past Boards under Docket Numbers AR20070011022 and AR20080004001. b. The applicant's OMPF contains a 1st indorsement [identified as Document Number 000653] to a letter sent from the Office of The Adjutant General on 21 December 1971 [identified as Document Number 000652]. These two documents are associated with the subject OER. c. The applicant's OMPF contains a photocopy of the reverse side of a DA Form 1059 (AER) that indicates the applicant withdrew from school on 30 June 1972. d. The Board recommended granting relief with respect to the subject documents; specifically, it recommended the removal of the subject AER and it recommended that the subject OER not be filed in the applicant's OMPF, should a copy become available. The Board did not address the subject OER associated documents, identified as Documents Number 000652 and 000653. e. The Deputy Assistant Secretary of the Army (Review Boards) (DASA-RB) approved the Board's recommendation on 30 December 2014. 9. The National Personnel Records Center (NPRC), St. Louis, MO, confirmed the removal of the subject AER from the applicant's OMPF on 24 June 2015. The applicant was notified of this fact by letter dated the same date. REFERENCES: 1. Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the AMHRR and states the performance folder is used for filing performance, commendatory, and disciplinary data. Once placed in the AMHRR, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board. Appendix B states the DA Form 67-9 is filed in the performance folder of the Soldier's AMHRR. 2. Army Regulation 600-37 (Unfavorable Information) provides 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. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. DISCUSSION: 1. The United States District Court for the District of Massachusetts, on remand to the ABCMR, asked it to: a. remove and formally expunge the applicant's adverse OER, adverse AER, and any AER-related correspondence dated 1 August 1972; and b. reconsider two OER-related documents, addressed as documents numbered 652 and 653, and render a decision regarding whether they should remain in the applicant's OMPF. 2. The Board considered the remanded case on 30 December 2014, under Docket Number AR20140012021. In this case, the DASA-RB approved the Board's recommendation to remove the subject AER. The NPRC confirmed the removal of the subject AER from the applicant's OMPF on 24 June 2015. 3. The Board did not address the presence of any AER-related correspondence in the applicant's OMPF; however, the presence of such correspondence negates the relief granted by the DASA-RB's order to remove the subject AER from the applicant's OMPF. The Board may recommend removal of any existing correspondence associated with the subject AER. 4. The DASA-RB also directed that the subject OER not be filed in the applicant's OMPF, should a copy become available. In an effort to more sufficiently satisfy the Court, the Board may recommend removing the subject OER from the applicant's OMPF in its entirety. 5. Lastly, the OER-related documents, identified as documents numbered 652 and 653, no longer serve a purpose and their presence negates the relief the applicant is granted by removing the subject OER. The Board may also recommend removal of these documents from the applicant's OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) @#!CASENUMBER 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160007228 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2