BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20160004552 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: 8 November 2016 DOCKET NUMBER: AR20160004552 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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. showing he was not selected for separation by an Officer Separation Board as described in the notification sent to him by the U.S. Army Human Resources Command on 9 February 2016; b. removing the letter, dated 9 February 2016, notifying him that he was denied continued active service under the provisions of Title 10, USC, section 638a with a separation date of 1 December 2016 from his Official Military Personnel File; c. revoking Orders Number C-10-613424, dated 6 October 2016 assigning him to the U.S. Army Reserve Control Group (Reinforcement), effective 2 December 2016; and d. removing the DA Form 67-10-1 (Officer Evaluation Report) covering the period 2 May 2013 through 29 May 2014 and replacing it with a statement of non-rated time. ___________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: 8 November 2016 DOCKET NUMBER: AR20160004552 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, in effect, a relook of the Officer Separation Board's (OSB) decision based on the removal of a General Officer Memorandum of Reprimand (GOMOR), dated 7 August 2014, from his Army Military Human Resource Record (which includes the Official Military Personnel File (OMPF)). 2. The applicant states, in effect: a. He received an unjust and untrue Officer Evaluation Report (OER) for the period 2 May 2013 through 29 May 2014. b. On 7 August 2014, he received an untrue and unjust GOMOR that was placed in his OMPF. c. He appealed both the GOMOR and the OER, but the U.S. Army Human Resources Command (HRC) returned the OER appeal with no actions taken because of insufficient evidence. d. On 11 February 2016 (sic, 17 December 2015), the Department of the Army Suitability Evaluation Board (DASEB) found the GOMOR unjust and untrue and voted to remove it from his OMPF. e. On 9 February 2016, the OSB notified him that he had been selected for involuntary separation from the Army, effective 1 December 2016. f. When the OSB convened, the above GOMOR was still in his file. His file also contained the OER that he was appealing. The same command group that imposed the GOMOR issued the OER. 3. The applicant provides: * DA Form 67-10-1 (OER) for the rated period 2 May 2013 through 29 May 2014 * memorandum, subject: Evaluation Report Appeal for Headquarters, Department of the Army (HQDA), for the period 2 May 2013 through 29 May 2014, dated 18 September 2015 * memorandum, subject: Evaluation Report Appeal (2 May 2013 through 29 May 2014, dated 1 October 2015 * letter from the Director, Officer Personnel Management Directorate, dated 9 February 2016 * OSB administrative instructions * memorandum, subject: Acknowledgement of Involuntary Separation, dated 9 February 2016 * memorandum, from DASEB, subject: Resolution of Unfavorable Information for – [Applicant], Case Number AR20150015764, dated 17 December 2015 CONSIDERATION OF EVIDENCE: 1. After having previous enlisted service, the applicant was appointed as a Regular Army commissioned officer in the rank of second lieutenant on 25 June 2009. 2. The applicant received a change of rater OER covering the period 5 July 2010 through 17 February 2011 that rated him as a Fire Direction Officer. The rater marked the "Outstanding Performance, Must Promote" box and entered positive comments. The senior rater (SR) rated the applicant's promotion potential to the next higher grade as "Best Qualified" with all positive comments. 3. The applicant received a change of rater OER covering the period 17 February 2011 through 18 November 2011 that rated him as a Firing Battery Platoon Leader. The rater marked the "Satisfactory Performance, Promote" box and entered positive comments with a recommendation for promotion to CPT. The SR rated the applicant's promotion potential to the next higher grade as "Best Qualified" with all positive comments. 4. The applicant received an annual OER covering the period 18 November 2011 through 17 November 2012 that rated him as a Fire Support Officer. The rater marked the "Outstanding Performance, Must Promote" box and entered positive comments. The SR rated the applicant's promotion potential to the next higher grade as "Best Qualified" with all positive comments. 5. Orders Number 353-037 published by Headquarters, HRC, Fort Knox, KY on 18 December 2012 promoted him to CPT with an effective date and date of rank of 1 January 2013. 6. The applicant received a change of duty OER covering the period 18 November 2012 through 1 May 2013 that rated him as a Fire Support Officer. The rater marked the "Outstanding Performance, Must Promote" box and entered positive comments. The SR rated the applicant's promotion potential to the next higher grade as "Best Qualified" with all positive comments. 7. The applicant received a SR Option OER covering the period 2 May 2013 through 29 May 2014 that rated him as an Assistant Operations Officer. The rater evaluated him as "Capable" and entered the comments "CPT [applicant] performed his duties satisfactorily during this rating period." The SR assessed him as "Qualified" and entered the comments, "[Applicant] has the potential for success. Groom for battery command by placing him in challenging assignments." 8. On 7 August 2014, the applicant received a GOMOR for an incident that allegedly occurred on 5 October 2013. The imposing authority issued the GOMOR as an administrative measure and not as punishment under Article 15, Uniform Code of Military Justice (UCMJ) and directed that the GOMORs filing in the applicant's OMPF. 9. The applicant received a change of rater OER covering the period 30 May 2014 through 1 August 2015 that rated him as a Fires Observer Controller. The rater evaluated him as "Proficient" and entered positive comments. The SR assessed him as "Highly Qualified" and entered positive comments. 10. In a memorandum, dated 16 September 2015, the applicant appealed to the DASEB and requested the removal of the GOMOR, dated 7 August 2014, from his OMPF. 11. In a memorandum, dated 18 September 2015 the applicant appealed his OER for the period covering 2 May 2013 through 29 May 2014 based on administrative inaccuracy. 12. In a memorandum, dated 1 October 2015, HRC-Fort Knox, notified the applicant that his OER was being returned without action. The memorandum indicated his appeal did not meet the criteria outlined in Army Regulation 623-3, (Evaluation Reporting System), chapter 4. (The burden of proof is to establish through clear and convincing evidence the contested evaluation was incorrect.) 13. On 17 December 2015, the DASEB determined that there was clear and convincing evidence showing that the GOMOR, based on an incident, which allegedly occurred on 5 October 2013, was rendered in error and was unjust or untrue. The DASEB, by unanimous decision, voted to grant the applicant's request in full and directed the removal of the GOMOR, dated 7 August 2014, and all allied documents from his OMPF. 14. A letter, dated 9 February 2016, from the Director, Officer Personnel Directorate, HRC-Fort Knox, informed the applicant of his selection for separation by a board that convened under the provisions of Title 10, U.S. Code (USC), Section 638a. This official stated that many highly qualified officers were selected for involuntary separation pursuant to Title 10, USC, section 638a, and he would be separated from the U.S. Army on 1 December 2016. The official advised him to contact an officer at HRC Officer Retirements and Separations if he had any questions that could not be answered locally at his Transition Center or by his HRC Assignment Officer. 15. On 9 February 2016, the applicant signed and acknowledged receipt of the notification informing him of his involuntary separation. He initialed paragraph 1b acknowledging that he had more than 6 years of active Federal service as of 1 December 2016 and would request separation pay. 16. The applicant's separation orders are not available for review in this case. 17. A memorandum, dated 11 February 2016, shows the President, DASEB notified HRC-Fort Knox that the board voted to remove the applicant's GOMOR, dated 7 August 2014 and all related documents from his OMPF. This official stated the evidence clearly and convincingly established the GOMOR was untrue and/or unjust. 18. His service record contains Orders Number C-10-613424 published on 6 October 2016 reassigning him to the U.S. Army Reserve Control Group (Reinforcement), effective 2 December 2016. REFERENCES: 1. Military Personnel Message Number 15-176 provides guidance on Fiscal Year 2015 OSB and (Enhanced) Selective Early Retirement Board (ESERB), CPT, Army Competitive Category issued on 11 June 2015. Paragraph 9 of this message states the boards will review an officer's performance in the OMPF which will include pre-screened limited portions of the restricted (R) OMPF/Interactive Personnel Electronic Records Management System (iPERMS) (If one exists), the Officer Record Brief, the official photograph, and authorized communications from each officer in the OSB or E-SERB considered population. The documents on the R-OMPF/iPERMS (restricted folder) that will be seen by the board may include the following: a. Article 15 or other UCMJ actions received as an officer that have not been set aside by proper authority. b. DASEB filing of unfavorable information. c. Promotion list removal documents when the officer is removed from the list. d. Punitive or administrative letters of reprimand, admonition, or censure. 2. Title 10, USC, section 611(b) states that whenever the needs of the service require, the Secretary of the military department concerned may convene selection boards to recommend officers for continuation on active duty under section 637 of this title or for early retirement under section 638 of this title. 3. Title 10, USC, section 638a, governs the modification to rules for continuation on active duty, enhanced authority for selective early retirement, and early discharges. a. Subparagraph a(1) states that the Secretary of Defense may authorize the Secretary of a military department to take any of the actions set forth in subsection (b) with respect to officers of an armed force under the jurisdiction of that Secretary. b. Subparagraph a(2) states that any authority provided to the Secretary of a military department under paragraph (1) shall expire on the date specified by the Secretary of Defense, but such expiration date may not be later than 31 December 2018. 4. Army Regulation 600-37, paragraph 7-2(b)3 states appeals submitted under this provision will normally be returned without action unless at least 1 year has elapsed since imposition of the letter and at least one evaluation report, other than academic, has been received in the interim. DISCUSSION: 1. The applicant received a GOMOR on 7 August 2014 for an incident that allegedly occurred on 5 October 2013. The imposing authority directed that the GOMOR be filed in his OMPF. 2. The applicant received an OER for the rated period 2 May 2013 through 29 May 2014; the alleged incident for which he received the GOMOR occurred during this period. His rating chain indicated that he performed his duties as an Assistant Operations Officer in a "Capable" manner. 3. The applicant submitted an appeal to the DASEB on 16 September 2015 for removal of the GOMOR. 4. The OSB convened on 22 September 2015 and selected the applicant for separation from the U.S. Army. It appears the OSB reviewed all the documents in the applicant's OMPF, including the GOMOR and the OER for the rated period 2 May 2013 through 29 May 2014. 5. The DASEB decided, by unanimous vote, to remove the GOMOR and all allied documents from the applicant's OMPF on 17 December 2015. The DASEB determined that the evidence established the GOMOR was untrue and/or unjust. Unfortunately, the DASEB did not notify HRC of the decision until almost two months later. 6. The applicant received notification on 9 February 2016 that he was denied continued active service under the provisions of Title 10, USC, section 638a with a separation date of 1 December 2016. 7. The DASEB sent a letter, dated 11 February 2016, to HRC. This letter informed HRC that the DASEB approved the removal of the applicant's GOMOR and all related documents from the applicant's OMPF. 8. Based on the timeline of the events in this case, it appears the applicant properly appealed the GOMOR and the DASEB rendered the decision to remove the GOMOR prior to approval of the OSB's decision to separate him. HRC received the DASEB notification to remove the GOMOR after the OSB convened. 9. Since it was determined by DASEB that the GOMOR was factually untrue and/or unjust, it appears it would also be appropriate to remove the OER he received for the period covering the date of the incident described in the GOMOR, as it is more likely that not that his rating chain's opinion of his performance was tainted by the alleged incident that occurred during that rating period. Further, as the DASEB determined that evidence established the GOMOR was untrue and/or unjust, the Board could choose to remove this OER from his record, as a matter of equity, to make the applicant whole by preventing his career being further colored by documents which should not have been considered by the OSB. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004552 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004552 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2