ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 September 2019 DOCKET NUMBER: AR20160016385 APPLICANT REQUESTS: * removal of a DA Form 67-9 (Officer Evaluation Report (OER)), for the period ending on 28 February 2013, and a General Officer Memorandum of Reprimand (GOMOR), dated 13 March 2013, from his official military personnel file (OMPF) * continuance on active duty * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 1059 (Service School Academic Evaluation Report) * two DA Forms 67-9 (2012 and 2013 (referred)) * DA Form 67-9-1 (OER Support Form) * GOMOR * email from his company commander * Acknowledgement of GOMOR and Commander’s Recommendation on Filing Determination memoranda FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. The GOMOR is unjust and his rebuttal was blocked from being submitted. The referred OER is not performance based, but focused on an ongoing Army Regulation (AR) 15-6 (Procedures for investigating Officers and Boards of Officers) investigation. The GOMOR and OER are also in direct violation of the regulation governing double jeopardy protocol. The entire AR 15-6 investigation is included within the GOMOR located in his OMPF. As a result of having the GOMOR and OER removed from his OMPF, he would like to be allowed to continue on active duty. b. AR’s stipulate that he is entitled to a non-bias investigator that is not in his chain of command. This is not what he received. The investigator, Major (MAJ) X_., who conducted this AR 15-6 investigation had prior adverse personal interaction with him in the gym upon his first arrival to the post, which should in itself have precluded him. MAJ X_. is also from the same home town and had the same area code and exchange on his personal mobile device as the other party in this AR 15-6 investigation. He voiced his objection and it went unheard. It is painfully evident by simply reading through the AR 15-6 investigation of a strong unfair bias. There is absolutely no evidential substantiation for any of the accusation, yet this investigator ruled in contradiction to his own investigation. He is not requesting an reinvestigation, he is only requesting that the circumstances of the AR 15-6 investigation be readjudicated because of the numerous inconsistencies within the paperwork. c. AR’s stipulate that he is entitled to submit a rebuttal and have it considered in response to an AR 15-6 investigation. His rebuttal was not afforded that opportunity for an audience by his company commander Captain X_. (same rank and area of concentration (AOC) as his), who falsified an official document stating that he did not submit, and recommended the GOMOR not be placed in his local file, but be placed in his permanent file. AR’s stipulate that officers are not allowed to misuse authority for personal/ professional gain. CPT X_., at the time company commander for Public Health Command, utilized authority to advance her career by misleading Field Officers and General Officers in an attempt to have him administratively separated. He and CPT X_. share the same AOC (Nuclear Medical Science Officer 72A) and promotion year group, at a time when the U.S. Army was scrutinizing officers’ background and downsizing as a result. Also the AOC 72A was beginning to take a closer look at officer education qualifications. He possessed a much higher degree of education in the physics field, while it is questionable if CPT X_. possessed the required degree for a Nuclear Medical Science Officer. It seems highly unfair and unethical that an officer be placed in a chain of command under another officer of the same peer group, such that this type of manipulation for personal/professional gain can take place. d. He became aware of CPT S_’s falsifying the documents attached to the GOMOR upon the packet she submitted to have him administratively separated due to adverse documentation in his OMPF. The referred OER was not performance based and posed a violation of double jeopardy for the same AR 15-6 investigation. Also, the referred OER’s period was covered during an ongoing AR 15-6 investigation which is in violation per the regulation governing OER’s. The U.S. Army Public Health Command did not follow AR 135-175 (Army National Guard and Army Reserve – Separation of Officers), paragraph 2-14(a), by proving him the opportunity to be reassigned under a different command for rehabilitation. e. The unjust actions by CPT S_. were so blatantly swept under the rug that it resulted in a great deal of distress that led to his hospitalization and a 3 year recovery period to which he can file to the Board for correction. 3. Review of the applicant’s service record shows: . a. He was appointed in the U.S. Army Reserve, Army Medical Department (AMEDD), as a first lieutenant, on 21 November 2009. He entered active duty on 21 August 2011. He was promoted to CPT on 22 August 2011. b. He provides copies the following: (1) DA Form 1059, dated 31 October 2011, showing he successfully completed the AMEDD Basic Officer Leader Course. (2) OER, for the period from 1 November 2011 to 28 February 2012, wherein he received ratings of “Outstanding” and “Best Qualified.” (3) OER Support Form, dated 28 February 2012, showing he had received face-to-face counseling. (4) Self-Authored Significant Contributions (self-explanatory). c. On 14 November 2012, he received counseling for a no contact order pertaining to allegations of threatening behavior toward two people at the San Antonio Military Medical Center. d. On 20 November 2012, an informal AR 15-6 investigation was initiated for allegations that the applicant harassed a civilian nurse and a commissioned officer. The investigating officer (IO) found the applicant did violate a verbal no contact order to have no contact with the commissioned officer and her family and he did harass the two individuals. e. On 7 January 2013, the Chief of Staff, U.S. Army Public Health Command, found there was sufficient evidence to support the IO findings. f. His record contains and he provides the referred OER, an “Annual” report, covering the rating period from 29 February 2012 to 28 February 2013, for his duties as a Health Physics Officer. The OER shows in: (1) Part IV (Performance Evaluation – Professionalism) – the rater placed an "X" in the "No" blocks for Mental, Emotional, Conceptual, Decision Making, and Officer Development. (2) Part V (Performance and Potential Evaluation) – the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block and entered the comments: [Applicant] is the most disappointing officer that I have rated in my almost thirty year career. First, he had an ongoing problem with reporting for duty on time that required written counseling and corrective training to rectify. Second, he displayed serious immaturity and lack of self-control in personal life. Specifically, he threatened and harassed a former girlfriend, a fellow Army officer, and her friend. The incident was elevated to the flag officer resulting in a no contact order being issued to the applicant. It also spurred an informal investigation into the incident which confirmed the allegations made against him by his former girlfriend and her friend. While this officer’s performance of duties was satisfactory, these other matters seriously eclipse his overall performance during this rating period. Consideration should be given to separating this individual from commissioned service in the Army at the earliest convenience. This officer displays no potential for promotion to the next rank. (3) Part VII (Senior Rater (SR) – the SR placed an "X" in the "Do Not Promote" block and entered the following comments: [Applicant’s] lack of immaturity and self-control is not keeping with the high standards expected of a captain in the U.S. Army. While his difficulty in reporting for duty on time was troublesome, his failure to obey a lawful no contact orders, verified by an AR 15-6 investigation, and conduct which was unbecoming an officer is of greatest concern. Given this, consideration should be given to separating this individual from the U.S. Army. (4) Part VII – the SR ranked the applicant "Below Center of Mass, Do Not Retain" and entered the entry “None” for positions the applicant would best serve. (5) The report was signed by the rater on 6 March 2013 and the SR on 12 March 2013. g. His record also contains and he also provides his response to this OER wherein he stated: (1) Colonel (COL) X was the most disappointing Program Manager that he had worked under in his 2 years of military service and his 15 years in the private sector as a Scientist. It became painfully apparent that this was an undesirable assignment for COL X_ and that COL _. Had no interest in him, his professional development in his AOC or as a Soldier. (2) COL X_ had been vocal to everyone in the program that his primary focus was on his retirement from the military service which took effect that month. COL X_’s demeanor within the office was mostly very unattached, uninterested, and nonengaging. He generally remained in his office for hours, not at his desk, but sitting quietly on a couch like chair facing the door with his eyes fixed on the screen of his personal laptop with his rather large theatrical sound head phones covering his ears. (3) Although that OER spanned the time of 29 February 2012 through 28 February 203, COL X_ is not engage with him until mid-May 2012. Essentially, COL X_ had only approximately 5 months collectively to assess his performance worth. The “ongoing problem with reporting to duty on time” comments was in reprise to an Inspector General complaint he had seen that there was no fairness across the board as to report time within the department, following a 2 week period in October when he received a counseling and corrective action plan to star work at 0730. (4) Following the corrective action plan, he accomplished and continued to adhere to the star time with no further issues. However, COL X_., wished to include in his OER and word it such that to the unsuspecting, it would seem as though it was still an on-going issue. When in translation, COL X_., was actually saying the issue of reporting to duty on time was resolved. Hence, the comment should be disregarded/stricken/dismissed from his OER. (5) In closing, he would like to amplify how that OER was not performance based even though he submitted, per COL X_’s requested, a well written and concise OER support form for which COL X_ should have used as a guide. The only mention of his performance is “This officer’s performance of his duties was satisfactory.” Because of that, the SR had no significant face time with him, and as such was bound to reply on COL X_’s comments. It was his hopes that the reader(s) of his comment would take into consideration all that he had conveyed to which the reader would stay the course and pay attention to only the “satisfactory performance” portion of that OER as he strived to further his career as a military officer. h. On 13 March 2013, he was issued a GOMOR for harassing an Army civilian employee and for failing to obey a no-contact order. The Commanding General (CG) stated: (1) A substantiated AR 15-6 investigation revealed that the applicant harassed a civilian nurse, Ms. X_ and he implicitly threatened her by stating, “ I can reach out and touch you and your family” or words to that effect. Additionally, on 3 November 20123, he was ordered not to have contact with CPT X_. or her family. He disobeyed that order on 4 November 2012 when he spoke with CPT X_. on the phone and again on 13 November 2013, when he called CPT X_’s daughter. (2) As a commissioned officer, he was charged with the responsibility for setting the example for Soldiers to emulate. Clearly, his actions fell below the standards expected of a commissioned officer in the U.S. Army. There was no excuse for his irresponsible and improper behavior, and further incidents of that nature would result in more serious action being taken against him. That conduct brought his suitability for continued service into doubt. He advised the applicant of his rights. i. On 14 March 2013, he acknowledged receipt of the reprimand and elected to submit written matters within 7 calendar day. j. In his response to the reprimand, dated 20 March 2013, he stated: (1) He requested the GOMOR be abandoned or locally filed. The substantiating evidence provided to him as the basis for the reprimand was incomplete and had an abundance of inconsistencies within the 15-6 investigation that did not clearly support “beyond a reasonable doubt” or even a “preponderance of evidence” to the allegations set within. He requested the CG to consider the totality of the circumstances regarding that situation (three phone calls in question_) as well as his entire career and service record when determining the appropriate disposition of the reprimand. (2) He regretted that his actions appeared to have fallen below that standards of an officer in the U.S. Army. It was his intent that response memorandum better explain the sequence of events and evident that he fulfilled his duties with regard to the allegations. He truly believed that as a commissioned officer of the U.S. Army, he had the responsibility to set and exceed the standard set for his Soldiers. He believes that his civilian and service record to date demonstrated his dedication to the National Dense, U.S. Army, and commitment to duty and integrity, (3) He pledged that his future duty performance would continue not only to reflect, but exceed the degree of professionalism and duty expected of every officer assigned to that command. In support of his rebuttal, he had included a recent OER to highlight that he had displayed high character, exceptional judgement, decision making, loyalty, dedications, and selfless service in his career. k. On 5 April 2013, the applicant’s company commander concurred with the findings of the AR 15-6 investigation and recommended the GOMOR be permanently filed in the applicant’s OMPF. l. On 10 April 2013, after carefully considering all matters available and the recommendations by the applicant's chain of command, the CG directed permanently filing of the GOMOR in the applicant's OMPF. m. An informal Physical Evaluation Board (PEB) convened on 3 February 2015 and found him physically unfit for major depressive disorder with traumatic brain injury and recommended his placement on the Temporary Disability Retired List with a 50 percent rating. He concurred with the findings and recommendations of the PEB and requested the Department of Veterans Affairs approve his disability rating. The PEB was approved on 26 May 2015. n. He was honorably retired on 28 January 2016, under the provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of temporary disability. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 5 months, and 8 days of active service. 6. By regulations: a. AR 600-37 (Unfavorable Information), administrative memorandums of reprimand may be issued to a Soldier for adverse action. The memorandum will be referred to the Soldier. Statements or other evidence furnished by the recipient will be reviewed and considered before a filing determination is made. b. AR 600-8-104 (Army Military Human Resource Records Management, once a GOMOR is placed in the OMPF, it 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. c. AR 623-3 (Evaluation Reporting System), in order to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. d. AR 635-40, a Soldier may be discharged from the Army for not meeting retention standards in accordance with AR 40-501 (Standards of Medical Fitness) and awarded a disability rating assigned by the Army’s disability system. e. AR 15-185 (ABCMR), 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. After Board members thoroughly read the entire file/case, the Board found the quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or prejudicial to good order and discipline. The applicant was a commissioned officer and a Soldier, performing in a position of trust and authority, at a time of war. Here, the applicant violated that trust. One of the purposes of filing unfavorable information is protection, not just for the Soldier's interests but for the Army's as well. The Board concluded the GOMOR is properly filed, and the applicant failed to provide sufficient evidence to show the GOMOR was either untrue or unjust or that it has served its purpose. Additionally, the Board found the contested OER accurately depicted the circumstances of service during the rated period. An OER is a measure an officer's performance and potential during a period of time. In order to support removal, transfer, or amendment of a report, there must be evidence that establishes clearly and convincingly that the presumption of administrative regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice. Using that standard, the Board concluded the applicant failed to provide adequate justification to show that he OER should be removed from his Official Military Personnel File. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION 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.1. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 600-37 (Unfavorable Information), in effect at the time, provided that an administrative memorandums of reprimand could be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. The regulation stated: a. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination was made. b. A memorandum of reprimand could be filed in a Soldier's Official Military Personnel File (OMPF) only upon the order of a general officer-level authority and was to be filed in the performance folder. The direction for filing was to be contained in an endorsement or addendum to the memorandum. If the reprimand was to be filed in the OMPF, the recipient's submissions were to be attached. Once filed in the OMPF, the reprimand and associated documents were permanent unless removed in accordance with chapter 7. c. Once an official document had been properly filed in the OMPF, it was presumed to be administratively correct and to had 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 was untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. d. Unfavorable information filed in the OMPF that indicated substandard leadership ability and a lack of promotion potential, morals, or integrity must be identified early and shown in those permanent official personnel records that were available to personnel managers and selection board members for use in making positions of significant trust and authority or positions or appointments screened for suitability personnel decisions. Other unfavorable character traits of a permanent nature should be similarly recorded. e. Only memoranda of reprimand, admonition, or censure could be the subject of an appeal for transfer to the restricted folder. Normally, such appeals would be considered only from Soldiers in grades E-6 and above, officers, and warrant officers. The above documents could be appealed on the basis of proof that their intended purpose had been served and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions had been met. 3. AR 623-3 (Evaluation Reporting System), in effect at the time, prescribed 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, 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. The regulation stated in: a. Paragraph 1-9 – Army evaluation reports were assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer. Performance would 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 would 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 3-34 – Any report with negative comments in Parts Vb, Vc, VI, or VIIc would be referred to the rated officer by the SR for acknowledgment and comment before it is sent to Headquarters, Department of the Army. c. 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. 4. AR 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Army Military Human Resource Record, including the OMPF. a. Chapter 2 provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF. Documents authorized for filing in the OMPF are kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and corrections to other parts of the OMPF. It also serves to protect the interests of the Soldier and the Army. 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 the Army Board for Correction of Military Records or other authorized agency. b. Table B-1 states a memorandum of reprimand is filed in the performance folder of the OMPF unless directed otherwise by an appropriate authority (Department of the Army Suitability Evaluation Board or this Board). 5. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures that governed the evaluation for physical fitness of Soldiers who could be unfit to perform their military duties because of physical disability. 6. 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 ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. ABCMR Record of Proceedings (cont) AR20160016385 9 1