BOARD DATE: 25 January 2018 DOCKET NUMBER: AR20160012539 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 BOARD DATE: 25 January 2018 DOCKET NUMBER: AR20160012539 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. BOARD DATE: 25 January 2018 DOCKET NUMBER: AR20160012539 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. Correction of his official military personnel file (OMPF) by removing the following documents: (1) DA Form 67-9 (Officer Evaluation Report (OER)), covering the rating period 7 January 2013 through 6 January 2014; and (2) DA Form 67-10-2 (Field Grade Plate (O4-O5; CW3-CW5) Officer Evaluation Report (OER)), covering the rating period 7 January 2014 through 2 May 2014, with associated documents. b. Adding the following documents to his OMPF: (1) A statement of non-rated time through 5 November 2013; and (2) An OER with a through date of 5 November 2014 (replacing the DA Form 67-9 ending 6 January 2014). c. Consideration for promotion to lieutenant colonel (LTC) by a special selection board (SSB), correct his record to show he was granted pay, a date of rank (DOR), and entitlements commensurate with the date he should have been promoted by the promotion board. d. The suspension of his involuntary separation action until a final determination is made in this case. e. A personal appearance before the Board. 2. The applicant states, in effect: * both OERs contain substantive and administrative errors * both OERs fail to reflect his performance and potential * both OERs contain derogatory and unsubstantiated information * both OERs lack the proper counseling per Army Regulation 623-3 (Evaluation Reporting System) * the signatures are out of order * he was reassigned to a different command during the rating period 3. In a separate memorandum to the Army Board for Correction of Military Records (ABCMR), dated 30 June 2016, subject: Request for the Correction of Military Records, the applicant provides, in pertinent part, the following statements: a. He is a father of four children and reconciling with his ex-wife from a 12-year marriage. He wants consideration for his service history of nearly 26 years, of which 6 years were as an enlisted Soldier. He is respected in his community, served in Iraq, and he is a civilian (military technician) with his USAR unit. b. In June 2015, he received two OERs that contained negative and erroneous information. He also received a General Officer Memorandum of Reprimand (GOMOR) on 2 March 2014 that was based on the same erroneous grounds; however, the GOMOR was successfully removed from his file by the DASEB [Department of the Army Suitability Evaluation Board] on the basis the information contained therein was "untrue and unjust." Additionally, he appeared before a Separation Board on 16 May 2015 and was found not guilty. He is now requesting removal of the two related and equally erroneous OERs from his OMPF for the same basis of erroneousness and impropriety. He is requesting removal of these OERS so that he may properly be considered for promotion to LTC. c. The OERs in question both relate to the same period of service. He is requesting removal of the OERs due to: (1) failure of the raters to follow necessary procedures in the rating process; (2) the raters' improper inclusion of prohibited information; and (3) the great and unfair prejudice he had and will continue to suffer as a result of these prohibited actions. In his 26 years of service, he has never been rated in such a manner as the Annual OER dated 20130107-20140106 and the Relief for Cause OER dated 20140107-20140502. d. In addition to removing both OERs, he would like to have his OMPF reflect non-rated time through 5 November 2013 and to have the OER for the period 6 November 2013 through 5 November 2014 signed and "permed." He would also like to have his promotion packet for LTC reconsidered minus these derogatory files and reflect a dated of rank, pay, and entitlements commensurate with earlier promotion board results. Additionally, he is requesting a suspension of all separation actions until a final determination can be made to remove the OERs, in order to receive a fair review for promotion to LTC. e. His argument or request for removal of the Annual OER is based on several violations. The lack of counseling, even after understanding that it cannot be the sole grounds for removal, the OER contained derogatory information, there was a need for leadership development but more importantly, he was not assigned to the 98th Division during this rating period. The OER also includes several regulatory violations both substantive and administrative. f. He felt like he walked into a hostile environment the first couple of months after joining the 98th Training Division on 7 January 2013 as an Operations Officer. g. His chain of command did not comply with regulatory guidance in counseling and evaluating him in a fair and unbiased manner. No initial counseling was conducted, a copy of his rater and senior rater support forms were not supplied, nor was he properly assessed or counseled on his performance or lack of meeting expectations. h. The derogatory information is unfounded such as, the rater's comment on losing trust and confidence in his abilities to perform as a field grade officer and ability to uphold the Army values. Additionally, the comments of his operating a motor vehicle with a blood alcohol content of .16 (twice the limit of .08), thereby referring to a charge of driving under the influence (DUI) that was dismissed. These comments should support removal of the OER from his record. i. Eight months into the rating period, he was suspended from the 98th Division and began conducting his Battle Assemblies (BA) with the 108th Training Command G-7, reporting to COL L.C. Per the DA Form 4856 (Developmental Counseling Form), he was informed he would continue to conduct his Army Reserve obligations with the 108th Training Command (IET) which was close to home, until further notice. He conducted his BA’s and AT (annual training) under the auspices of COL L.C. and the 108th Training Command (IET), G-7. Additional evidence is provided per the attached email between his rater and the SJA that in fact he was not assigned to the 93th Training Division during this timeframe. Therefore, he should have been rated by a LTC H. and COL C. He therefore, request such be ordered, signed, and permed. j. It is also his contention that the same information and mindset was used to justify the Relief for Cause OER. The dates of the signatures on both evaluation reports are within two months of each other but 16 months after the end of the rating period. When compared the language and comments of both OERs, it is rather obvious that the rating chain used the same information/language. This information was included to show members of the ABCMR Board just how the command manages. It took 3 months to notify him of his positive prescription, but 9 months to counsel him concerning such. It took 15 months to ascertain the proper guidance to designate "legitimate use" of a prescribed medication and 17 months to draft an OER. It appears the command did not delay in trying to sabotage his career but was unreasonable in addressing the violations per his inquiry. k. The senior rater's Letter of Referral is unsubstantiated and unfounded since no investigation was conducted. This led to his non-selection to LTC. The Relief for Cause memorandum stated he was arrested for DUI (of which he was acquitted); failed a random urinalysis (which he had a medical authorized use for and the DASEB removed from his record); his arrest for Domestic Violence and he failed to report it (of which he was never convicted for) violated his rights. l. His argument for removal of the Relief for Cause OER is due to the improper sequencing of signatures, no evidence of or provided counseling on expectations and performance, and for part of the rating period he was with another unit. m. Having been denied by the Human Resources Command, this appeal is based on a combination of both administrative and substantive violations and should be removed from his record and he should be afforded a fair review before the LTC selection board. 4. The applicant provides in the following exhibit order: * a personal and family photograph and personal articles * DA Form 2-1 (Personnel Qualification Record) * multiple military and civilian awards certificates * General Officer Reprimand memorandum, dated 10 December 2013 * a letter from the President, DASEB, dated 15 December 2014 with page one of the Record of Proceedings * DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 16 May 2015 * Annual OER covering the period 7 January 2013 through 6 January 2014 * Relief for Cause OER covering the period 7 January 2014 through 2 May 2014 with Letter of Referral * 12 previous OERs covering the time frame from 4 February 2003 through 6 January 2013 * DA Form 67-9 covering the period 6 November 2013 through 5 November 2014, unsigned and undated * three-pages of email * a Memorandum For Record from L.C., dated 22 March 2016 * numerous personnel training documents * a one-page Officer Special Review Board (OSRB) Record of Proceedings Docket Number AR20150013430, dated 10 December 2015 * a memorandum for Commander, 108th Training Command, subject: Commander's Inquiry on an OER for (Applicant) for the period 7 January 2013 through 6 January 2014, dated 15 September 2014 * DA Form 4856, dated 2 May 2014 * a memorandum from Commander, 98th Division, subject: Relief for Cause, dated 2 May 2014 * Army Directive 2011-17 (Self-Reporting by Officers and Senior Enlisted Members of Criminal Convictions) * "Motion To Dismiss" in General Court of Justice the State of North Carolina vs. (Applicant), only page one, file date of 7 August 2013 * two-page document titled, "Criminal Records.Txt" * three Standard Forms 513 (Medical Record - Consultation Sheet), dated 6 November 2013, 14 November 2013, and 26 March 2015 respectively * State of North Carolina - Warrant for Arrest, dated 15 November 2013 * State of North Carolina - Petition and Order of Expunction, dated 11 September 2014 * Annual OER covering the period 7 January 2013 through 6 January 2014, signed and dated but not actioned by Headquarters Department of the Army (HQDA) * an email dated 25 May 2016 * OSRB Record of Proceedings, Docket Number AR20150013430, with Board date of 10 December 2015 and auxiliary documents (Annual OER) * OSRB Record of Proceedings, Docket Number AR20150016957, with Board date of 10 December 2015 and auxiliary documents (Relief for Cause OER) 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. Following prior enlisted service in the U.S. Army Reserve (USAR), the applicant was appointed as a Reserve commissioned officer on 19 December 1997. He remained in the USAR, through positions of increased responsibility, and he was promoted to major (MAJ) on 2 January 2009. 3. The applicant received a memorandum of reprimand (GOMOR) from the Commander, 98th Division, dated 10 December 2013, subject: General Officer Reprimand, which states the applicant tested positive for marijuana use on 1 August 2013 and a subsequent medical review determined the positive test was the result of illegitimate use. 4. The applicant appealed to the DASEB, contending that, in effect, the GOMOR was untrue and unjust because the positive result was not from marijuana use but a prescribed medication. 5. In Docket Number AR20140013940, on 30 October 2014, based on clear and convincing evidence, the DASEB directed the removal of the GOMOR and all allied documents from the applicant's OMPF. 6. The first contested OER the applicant received was in the month of July 2015; this was an "Annual" report covering 12 months of rated time from 7 January 2013 through 6 January 2014. This report was based on his duty performance as an Operations Officer while assigned to Headquarters, 98th Training Division (IET), Fort Benning, GA. a. His rater was COL J.S.P., the Chief of Staff, G-3/7, and his senior rater was BG M.A.K., the Commanding General. b. The Army Values of integrity, courage, loyalty, and respect were all evaluated to have been as negative. A "No" answer was given in the appropriate space on the OER for each of these values. c. Two of the three leader attributes, mental and emotional, were rated negatively and a "No" answer was given in the appropriate spaces on the OER. One of the three leader skills - conceptual, was rated to have been negative and a "No" answer was given in the appropriate spaces on the OER. Of the nine leader actions of leadership the applicant was rated negatively in decision-making and learning. A "No" answer was given in the appropriate spaces for each leadership action on the OER. d. In Part V (Performance and Potential Evaluation) the rater marked the block indicating "Unsatisfactory Performance, Do Not Promote" and entered the following comments: During the rated period, I lost complete trust and confidence in [Applicant's] ability to perform as a field grade officer in the G-3 section. [Applicant's] inadequate professional performance and personal conduct demonstrated that he does not uphold the Army Values. [Applicant] displayed poor decision making and did not adhere to the Army Values of Integrity, Courage, and Respect in both on and off duty situations. [Applicant] operated a motor vehicle off duty with a Blood Alcohol Content of .16 (twice the limit of .08). Moreover, [Applicant] failed to promote an environment of dignity and respect toward others. His professional and personal conduct did not comport with the standard expected of a field grade officer and was not in compliance with written guidance issued to him by the Commanding General early in the rated period. MSAF (Multi-Source Assessment and Feedback) 360 ws not initiated. [Applicant] did not provide a support form. [Applicant] received Sharp training. I was unable to determine whether he followed its provisions. e. The rater entered the following comment in Part Vc: "Do not promote. This Soldier is incapable of satisfactorily performing duties at his current grade." f. The senior rater in Part VIIa of the OER evaluated the applicant's promotion potential to the next higher grade and gave him a rating of "Do Not Promote." The senior rater indicated that at the time, she served as senior rater to 8 officers in the applicant's grade. Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) of the OER shows the applicant was rated in the "Below Center of Mass - Do Not Retain" block. g. In Part VIIc (Comment on Performance/Potential) the senior rater entered the following comments: [Applicant] failed to maintain my trust and confidence that he could perform the duties associated with an officer of his rank and experience. Although I provided [Applicant] the chance to demonstrate improved performance and adherence to the Army values, he squandered the opportunity. His actions violated Army Values and did not adhere to the standards and traditions of the 98th Training Division, or the United States Army and its Officer Corps. Officer did not provide a support form as required. 7. The rater and senior rater authenticated the OER, with their digital signatures in the appropriate places each on 12 January 2015. The applicant authenticated the form with his digital signature on 17 July 2015. The report was processed by HQDA on or about 28 July 2015. 8. The applicant submitted a request on 15 September 2014 to the Commander, 108th Training Command (the higher level command) for a Commander's Inquiry into the contested OER for the rating period ending 6 January 2014 on the basis of inaccurate and untrue statements made by the rating chain, personality differences, and the lack of leadership during the rating period. 9. There is no evidence in the applicant's record nor did the applicant provide any that shows or suggest a Commander's Inquiry was initiated. 10. A DA Form 4856, dated 2 May 2014, shows his rater counseled him regarding his Relief for Cause from his duties in the G-3 section, 98th Division. It stated the following of which the applicant disagreed with: * the applicant's actions during the rating period has caused him to lose trust and confidence in his ability to function as a field grade officer * he failed to live up to the terms of an agreement covering his assignment to HQ, 98th Division that he made with the CG * he was arrested twice by civilian law enforcement and did not report these incidents to the chain of command * he tested positive for marijuana and the medical review determined this was illegitimate use * the applicant would advise him if he would like to temporarily perform duty at a location close to his home of record * informed to immediately seek assistance from Army resources if necessary; either Chaplain or Military OneSource * re-dedicate himself to the Army Values and seek to improve his duty performance * keep his chain of command apprised of any problems or issues that arise or if he need help of any kind 11. A memorandum to the applicant from the Commander, 98th Division, subject: Relief for Cause, dated 2 May 2014, informed him she had lost confidence in his ability to serve as an Army officer and that he failed to uphold the standards of the U.S. Army and its officer corps and that he had not demonstrated the leadership requirements of a field grade officer. The action became necessary due to the following events: a. His arrest for driving while impaired (DWI) and open container violations by law enforcement in February 2013, which he did not report to his chain of command. b. Failing a random urinalysis test in August 2013. This was the second failure of a random urinalysis in his military career and ruled "illegitimate use" by the Fort Benning Medical Review Officer. c. His arrest for Domestic Violence against his wife by civilian law enforcement in November 2013, which resulted in a restraining order and did not report the arrest to his chain of command. d. His failure to demonstrate the qualities and abilities of a field grade officer as he was directed to do on 3 March 2013. At the time, the CG agreed to consider lifting a previous letter of reprimand issued by BG E. after 12 months, if he performed well. Unbeknownst to (CG), he had already been arrested for DWI. He was notified that BG E.'s reprimand would not be lifted and it would stay in his local file for three years from date of imposition or as otherwise required in accordance with regulatory guidance. e. Effectively immediately, he was relieved of his duties in the G-3 section, 98th Training Division and a Relief for Cause OER would be prepared. 12. The second contested OER he received was in the month of September 2015; this is a "Relief for Cause" report covering 4 months of rated time from 7 January 2014 through 2 May 2014. This report was based on the applicant's duty performance as an Operations Officer while assigned to Headquarters, 98th Training Division (IET), Fort Benning, GA. a. His rater was COL J.S.P., the Chief of Staff, G-3/7, and his senior rater was BG M.A.K., the Commanding General. b. In Part IVd1 (Character - Adherence to Army Values, Empathy, and Warrior Ethos/Service Ethos and Discipline. Fully Supports Sharp, EO, and EEO), the rater stated the following, "[Applicant] does not maintain an adherence to Army Values with his personal conduct. I question his dedication to SHARP and his promotion of dignity and respect toward others." c. In Part IVd2 (Performance - Field Grade Competencies and Attributes) the rater entered the following: Based on the performance deficiencies identifies during the previous rating period, I have continued to lose trust and confidence in [Applicant's] ability to perform as a field grade officer and have relieved him for cause. His personal conduct did not adhere to the Army Values. Additionally, he did not comport his behavior with the standards expected of a filed grade officer. His dedication to SHARP was not observed. MSAF has not been initiated. d. In Part IVe (Overall Performance is Rated), he rated the applicant as "Unsatisfactory" with the comment of: "No DA Form 67-10-1A (OER Support Form) was received. [Applicant] was not in compliance with guidance issued to him by the CG." e. In Part VIa (Potential Compared with Offices Senior Rated in Same Grade) of this OER shows the senior rater rated the applicant as "Not Qualified." The senior rater indicated at the time he served as senior rater to 6 officers in the applicant's grade. f. In Part VIc (Comment on Potential) the senior rater entered the following comments: [Applicant's] poor self-discipline and poor judgement deem him not qualified for further responsibly. Nothing that has occurred since 20140107 has caused me to regain trust and confidence in his abilities to perform as a field grade officer and uphold the Army Values. He is relieved for cause. 13. The applicant received a Letter of Referral from the senior rater on 12 January 2015 notifying him of the Relief for Cause. He was also requested to acknowledge receipt of the notice and was informed of his rights to submit a Commander's Inquiry or appeal. 14. The senior rater authenticated the OER, with her digital signatures in the appropriate place on 28 July 2015. The rater and the applicant authenticated the form with their digital signatures in the appropriate places on 12 September 2015 and 13 September 2015 respectively. The report was processed by HQDA on or about 15 September 2015. 15. The applicant appealed both OERs to the ORSB, contending, in effect, the OERs violated portions of the governing regulations, he was never provided follow-up counseling, the OERs contained inaccurate and untrue statements, and the charges against him were either dismissed, dropped, or he was found not guilty. Additionally, an Administration Separation Board found him not guilty of the previous charges and retain him in the service. He requested the OSRB remove the OERs from his OMPF. 16. In Docket Numbers AR20150013430 and AR20150016957, both dated 10 December 2015, the OSRB reviewed his OER appeals and determined the evidence presented did not establish clearly and convincingly the presumption of regularity should not be applied or that action was warranted to correct a material error, inaccuracy, or injustice. The OSRB denied both of his requests. 17. His record does not contain orders reassigning him from Headquarters, 98th Division to the 108th Training Command. Additionally, he does provide a rating scheme. 18. The applicant provided in addition to those documents discussed above: a. Several photographs and an article about the applicant’s family and his community service. Additionally, he provided multiple military and civilian awards certificates he earned. b. DA Form 2-1 covering the period of service through 2 May 2017. c. Multiple personnel documents outlining his training dates. Additionally, he submits his 12 previous OERs covering his service from 4 February 2003 through 6 January 2013 to attest to his past performances. d. Three Standard Forms 513, dated 6 November 2013, 14 November 2013, and 26 March 2015 respectively, which ultimately legitimizes his use of a valid medical explanation for his positive urinalysis result by the 26 March 2015 second review. e. Army Directive 2011-17 (Self-Reporting by Officers and Senior Enlisted Members of Criminal Convictions), dated 21 September 2011, outlines the requirements for all U.S. Army personnel in the pay grade of E-6 and above on active duty or in an active duty status in the Reserve Components shall report in writing. f. DA Form 1574, dated 16 May 2015 which shows, based on the applicant's statements, the applicant went before a Board of Officers to determine if he should be retained in the Army. The findings of the board were: (1) [Applicant] did not commit an act of personal misconduct in violation of AR 135-175, paragraph 2-11(f), by operating a motor vehicle while in an impaired state. (2) [Applicant] did not commit conduct unbecoming an officer in violation of AR 135-175, paragraph 2-11(o), by operating a motor vehicle while in an impaired state. (3) The aforementioned findings do not warrant separation in accordance with AR 135-175. (4) The board recommended the applicant be retained in the USAR. (5) On an unknown date, the appointing authority approved the board's recommendation. g. A copy of the contested Annual OER, covering the period 7 January 2013 through 6 January 2014, which appears to be a working copy and not submitted to HQDA. h. A DA Form 67-9, covering the period 6 November 2013 through 5 November 2014, unsigned and undated by the rater, senior rater, and the applicant. This annual OER is the OER the applicant wants to be inserted in his record in place of the contested Annual OER. However, this OER is from a different set of evaluators and overlaps the contested Annual OER period. i. A Memorandum for Record from L.C. (the proposed senior rater from the OER discussed in paragraph h), dated 22 March 2016 stating he recalled the 98th Training Division authorizing the applicant to conduct BA’s at the 108th Training Command due to his suspension of duties and his separation board. j. Three-pages of email dated from 29 September 2013 through 14 November 2013 discussing a briefing packet the applicant was working on. k. A "Motion To Dismiss," General Court of Justice the State of North Carolina vs. (Applicant), only page one, file date of 7 August 2013, which shows the applicant was petitioning the court to dismiss his charge of DWI on 3 February 2013. This document does not list the outcome. l. Multiple legal document that include a two-page document titled, "Criminal Records.Txt," a State of North Carolina - Warrant for Arrest, dated 15 November 2013, which shows he was arrested for the offense of "assault on a female" and he pled and was found not guilty and a State of North Carolina - Petition and Order of Expunction, dated 11 September 2014, which he petitioned the court seeking expunction of his charges of DWI (dismissed) and assault on a female (not guilty). The petition was granted. m. An email, dated 25 May 2016, between the applicant and the USARC G-1, discussing his notification of Show Cause due to an SSB, Fiscal Year 2015 LTC AGR, Non-AGR, and ARNG APL PSB. REFERENCES: 1. Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list. Paragraph 7-2 states an SSB may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: * an officer was not considered in or above the promotion zone by a regularly-scheduled board because of administrative error (SSB required) * the board that considered the officer in or above the promotion zone acted contrary to law or made a material error (SSB discretionary) * the board that considered the officer in or above the promotion zone did not have before it some material information (SSB discretionary) 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states the performance folder is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. Appendix B states the DA Form 67-9 and DA Form 67-10-2 are filed in the performance folder of the Soldier's OMPF. 3. 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. 4. Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. It also provides guidance regarding redress programs, including commander's inquiries and appeals. The regulation provides that: a. Evaluation reports are assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps. 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, counseling forms, and as explained in DA Pamphlet 623-3. Consideration will be given to the relative experience of the rated officer, the efforts made by the rated officer, and the results that could be reasonably expected given the time and resources available. 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. Assessment of potential will apply to all officers, regardless of their opportunity to be selected for higher positions or grades. b. The senior rater is the senior rating official in the military rating chain or as officially designated by the academic institution. Senior raters use their position and experience to evaluate the rated Soldier from a broad organizational perspective, military program of instruction, or civilian academic course standards. Senior raters will ensure support forms are provided to all rated Soldiers they senior rate at the beginning of and throughout the respective rating periods; use all reasonable means to become familiar with a rated Soldier's performance; assess the ability of the rated Soldier; ensure that rating officials counsel the rated Soldier individually and throughout the rating period on meeting their objectives and complying with the professional standards of the Army; consider the information on the applicable support forms when evaluating the rated individual; evaluate the rated Soldier's potential relative to their contemporaries; and ensure that all reports, which the senior rater and subordinates write, are complete and provide a realistic evaluation in compliance with procedures established in DA Pamphlet 623-3. c. Each report will be an independent evaluation of the rated Soldier for a specific rating period. It will not refer to prior or subsequent reports. It will not remark on performance or incidents occurring before or after the period covered. d. A report (Referred DA Form 67-10 Series) will be referred to the rated officer by the senior rater for acknowledgment and comment before it is sent to HQDA when it shows any of the following: * rater performance evaluation of "Capable" in Part IV * senior rater potential evaluation of "Not Qualified" * any negative comments in Parts IV, V, or VI e. Digital signatures are the standard for evaluation reports. Members of the rating chain and the rated Soldier are the only persons authorized to sign an evaluation report. The rated Soldier will always be the individual to sign the evaluation report last after rating officials. f. Evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. 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. g. In Part VIIb of the OER, the senior rater will make an assessment of the rated officer's potential in comparison with all officers of the same grade. This assessment should be based on officers the senior rater has senior rated or has currently in his/her senior rater population. This potential is evaluated in terms of the majority of officers in the population. h. The rated Soldier's authentication in Part II (Authentication) of the OER verifies the information in Part I (Administrative Data). It also confirms the rating officials named in Part II are those established as the rating chain and authenticates the accuracy of the Army Physical Fitness Test performance and height and weight data entries made by the rater. Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier will be accepted only under the most unusual and compelling circumstances. The rated Soldier's signature also verifies the rated Soldier has seen a completed evaluation report. Correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report. Removal of a report for administrative reasons will be allowed only when circumstances preclude correction of errors, and then only when retention of the report would clearly result in an injustice to the Soldier. i. A "Relief for Cause" OER is required when an officer is relieved for cause, regardless of the rating period involved. Relief for Cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty. In this regard, duty performance will consist of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards consisting of attributes and competencies as part of the Leadership Requirements Model. These standards will apply to conduct both on and off duty. j. A request that a completed evaluation report filed in a Soldier's Army Military Human Resource Record be altered, withdrawn, or replaced with another evaluation report will not be honored if the request is based on revision of ratings given. k. A personality conflict between the appellant and a rating official does not constitute grounds for a favorable appeal, unless it is shown conclusively that the conflict resulted in an inaccurate or unjust evaluation. l. To ensure the availability of pertinent date and timely completion of an inquiry conducted after the evaluation in question has been accepted at HQDA for inclusion in the rated Soldier's OMPF, the inquiry will be conducted by either the Commander or commandant at the time the evaluation was rendered who is still in the command positon, or by a subsequent Commander or commandant in the position. The results of the inquiry will be forwarded to HQDA not later than 120 days after the signature date of the senior rater (OER) or reviewer (NCOER) or authenticating official (AER). 5. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. This regulation provides that: a. ABCMR members will review all applications that are properly brought before them to determine the existence of an error or injustice, and direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. b. Applying to the ABCMR does not stay other proceedings. c. The ABCMR is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant's following requests were carefully considered: * removal of two OERs (for the periods 7 January 2013 through 6 January 2014 and 7 January through 2 May 2014) from his OMPF * place a statement of non-rated time in his record through 5 November 2013 * replace the Annual OER ending 6 January 2014 * grant an SSB for consideration to LTC with a date of rank, pay, and entitlements consistent with an earlier board date * suspension of his separation action until a final decision has been made by this Board 2. The applicant's request is based on perceived substantive and administrative errors. However, in order to justify removal of a OER, the applicant must produce evidence that establishes clearly and convincingly that: (1) the presumption of regularity should not be applied to the contested OER and (2) action is warranted to correct a material error, inaccuracy, or injustice. 3. The applicant bases his contentions for both contested OERs on his rating chain's lack of objectivity or fairness, lack of proper counseling, derogatory and unsubstantiated information, and improper sequencing of the signatures on his OERs. He also stated he experienced a hostile work environment from the onset of his arrival at his duty station. However, aside from his expressed dissatisfaction with the rating, he has not provided clear and convincing evidence to support these contentions. 4. Even though the applicant believes the comments about his DWI – a charge that was dismissed – and his arrest for Domestic Violence – a charge of which he was found not guilty – should be grounds for removal of the OERs from his record. His contested OERs only mentioned his DWI and, more importantly, his rating chain stated they lost their trust and confidence in his abilities as an officer. 5. Even though the applicant believes his rater and senior rater comments about the loss of trust and confidence in his abilities are unfounded. There is no evidence convincingly showing his rater and senior rater did not comply with the regulatory requirements to evaluate him in a fair and unbiased manner. In addition, he has not shown his rating officials' evaluations represented anything other than their objective judgement and considered opinions at the time they prepared the contested OERs or that they exercised faulty judgement in evaluating him as they did. 6. His contested OERs appear to be correct and to represent a fair, objective, and valid appraisal of his demonstrated performance and potential during the periods in question. They contain no unproven derogative or prohibited narratives/comments that would require removal or a change based on regulatory guidance. 7. In accordance with applicable regulations, failure to comply with any or all support or counseling form requirements does not constitute the sole grounds for appeal of an evaluation report. Regarding the improper sequencing of the signatures on his OERs, the applicable regulation states the rated Soldier's signature will occur after the rater and senior rater. In both contested OERs the applicant signed after the senior rater and both OERs were accepted by and processed at HQDA. 8. The applicant's contends the Annual OER that was written by the 108th Training Command should be dated, signed, and processed through HQDA as the replacement for the contested Annual OER. However, this OER overlaps his contested OERs and there are no orders assigning him to the 108th Training Command nor is there a rating scheme designating the officers on this OER as his rater and senior rater. The applicable regulatory guidance states a request that a completed evaluation report filed in a Soldier's OMPF be altered, withdrawn, or replaced with another evaluation report will not be honored if the request is based on revision of ratings given. 9. The applicant appealed both contested OERs to the OSRB. The OSRB, after careful consideration of the evidence presented, determined the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied or that action was warranted to correct a material error, inaccuracy, or injustice and denied both of his requests. 10. The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier. In this regard, the OMPF serves to maintain an unbroken historical record of a Soldier's service, conduct, duty performance, and evaluations, and corrections to other parts of the OMPF. Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority. In this case, there is no evidence the contested OER was unjust or untrue or inappropriately filed in the applicant's OMPF. 11. In the absence of a material error in his record, he would not qualify for reconsideration for promotion to LTC by an SSB. Further, he does not qualify for additional entitlements, pay, or a change of date of rank. 12. The applicant's request for a suspension of his separation action until a final determination is made was considered. However, by regulation, applying to the ABCMR does not stay other proceedings/actions. 13. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012539 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160012539 19 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2