IN THE CASE OF: BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20160016472 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ____x___ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20160016472 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. Transferring the GOMOR, dated 11 March 2013, to the restricted folder of his OMPF. b. Following transfer of the GOMOR, placing his records before an SSB for Active Component Chaplains Corps promotion consideration to MAJ based on Fiscal Year 2017 criteria. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to removing an officer evaluation report for the rating period 2 May 2012 through 7 January 2013. _____________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20160016472 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: The applicant defers his request, statement, and evidence to counsel, concerning the removal his Officer Evaluation Report (OER) and General Officer Memorandum of Reprimand (GOMOR), and consideration for promotion to major (MAJ) by a special selection board (SSB). He also requests a personal appearance before the Board. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests: * removal of a referred, relief for cause OER for the rating period 2 May 2012 through 7 January 2013 (hereinafter called the contested OER) from the performance folder of his official military personnel file (OMPF) * removal of a GOMOR), dated 11 March 2013, from the performance folder of his OMPF; in the alternative, request placement in the restricted folder of his OMPF * in effect, based upon the Board's removal of the contested OER and the GOMOR, permit his file to be submitted for consideration by an SSB 2. Counsel states, in effect: a. The contested OER should be removed because it contains both administrative and substantive inaccuracies in violation of Army Regulation (AR) 623-3 (Evaluation Reporting System). Regarding administrative errors: (1) In Part IV (Performance Evaluation - Professionalism): * subsection a (Army Values), rater indicates the applicant allegedly lacked "respect, selfless service, or duty;" these ratings do not match his duty performance for the rated period * subsection b (Leader Attributes/Skills/Actions), rater checked "No" for "Physical;" this is contradicted in that he met height/weight standards and passed his Army Physical Fitness Test (APFT) (2) The rater's narrative portion states: * he failed his Army Physical Fitness Test (APFT) and did not meet height/weight requirements; the report clearly reflects otherwise * prohibited capitalizations were included in that the comments state the applicant lacked "Physical Fitness and Military Bearing;" this was done as a way of drawing attention to these alleged flaws * impermissible references are made to the applicant's religious ministry, implying what he taught was not appropriate for a military context * there were allegations the applicant did not report for formations, reflective of a pattern of behavior; this claim was contradicted by the findings of the applicant's elimination board of inquiry (BOI) (3) In Part VIIc (Comments on Performance/Potential), the senior rater, in two separate sentences, refers to the applicant's alleged inability to "adhere to required standards of a commissioned officer." This appears to be directly related to the inaccurate impression the applicant did not pass his APFT, and allegedly failed height/weight standards. b. The contested OER is substantively inaccurate in that, while purporting to address the entire rating period, it appears to be focused on two incidents that occurred within a relatively short time frame from one another. These two incidents were isolated and not indicative of the entirety of the applicant's performance during the rated period. Counsel contends, in effect, the recommendations made in the contested OER were exaggerated, and not reflective of the quality of the applicant's contributions to the unit. c. The applicant submitted an appeal of the contested OER to the U.S. Army Human Resources Command (HRC) on 7January 2016. HRC returned the appeal without action because it was deemed untimely. The applicant contends this action by HRC was an error because he delivered his appeal on the last day of the 3-year window. HRC explained its denial in a telephone call, during which a Mr. K stated HRC needed to receive substantive appeals well in advance of the 3-year time limit so that Mr. K's office had sufficient time to process the appeal through a special review board (apparently referring to the Department of the Army Suitability Evaluation Board (DASEB)). This is not, however, what the regulation states. Counsel provides documentation confirming delivery to HRC on 7 January 2016 (3 years and 1 day after the "THRU" date listed on the contested OER). d. As to the GOMOR, it should be removed because it has served its purpose, contains inaccuracies (overstating the severity of his behavior), and essentially addresses the same behaviors already described in the contested OER. Its continued presence in the applicant's OMPF is overly punitive and not rehabilitative. In the alternative, should the Board decide not to remove it, the applicant would ask to move the GOMOR to the restricted folder of his OMPF. This is because he acknowledges the two incidents involving disrespect are accurate. AR 600-37 (Unfavorable Information) permits such a transfer when it is shown the letter has accomplished its goal. The applicant has submitted numerous letters of support, along with his subsequent OERs, all of which demonstrate he has changed his behavior. e. Elimination action, that required a board of inquiry (BOI) to be convened, was initiated against the applicant based on the contested OER and the GOMOR. The board had the opportunity to question witnesses and review documentary evidence. The result was a more comprehensive assessment of the applicant, and the incidents identified in the contested OER and GOMOR, than was offered by the chain of command's informal investigations. After hearing all of the evidence, the board found that, while the applicant admitted to being disrespectful on two occasions, there did not appear to be a pattern of insubordination. Rather, the evidence showed the applicant recognized his fault and apologized. With regard to his alleged failure to report on multiple occasions for physical training, the board did not find sufficient substantiated evidence to support that claim. The board recommended the applicant's retention on active duty. f. Over the past 3 years, the applicant has done tremendously well in his career field. His supervisors have evaluated him to be among the best. He has deployed, and, in that environment, ministered to Soldiers under very demanding circumstances. He asks for the opportunity to continue his service these Soldiers and his country. g. The applicant also requests expedited processing of his petition because a promotion selection board for his branch and year group is scheduled for October 2016. The applicant was passed over for promotion to major (MAJ) in 2015, and this board will permit him a second opportunity for consideration. 3. Counsel provides documentary evidence separated among three exhibits: a. Exhibit 1: * memorandum, dated 5 January 2016, Subject: Appeal of OER for the period from 2 May 2012 through 7 January 2016 and contested OER * memorandum, dated 6 February 2013, Subject: Supplementary OER Review as Required by AR 623-3, paragraph 2-17c, signed by Colonel (COL) JAR (brigade commander) * memorandum, dated 6 February 2013, Subject: Relief for Cause OER, signed by Lieutenant Colonel (LTC) MAG (battalion commander/senior rater) * memorandum, dated 6 February 2013, Subject: Relief for Cause OER, signed by the applicant * memorandum, dated 13 February 2013, Subject: Comments to Referred OER, [applicant] * Officer Record Brief, dated 5 January 2016 * DA Form 705 (APFT Scorecard), with test results dated August 2012 * DA Form 5500 (Body Fat Content Worksheet), dated 6 August 2012 * two DA Forms 268 (Report to Suspend Favorable Personnel Actions (FLAG)), both dated 15 October 2012 * BOI Summary of Proceedings, dated 22 October 2013 * five DA Forms 3349 (Physical Profile), dated 7 February 2012, 22 March 2012, 2 April 2012, 16 July 2012, and 15 April 2013 * two letters of support, dated 16 August 2013 and 21 October 2013 * OERs and Academic Evaluation Reports (AER) spanning rating periods from May 2008 through May 2012; and January 2013 through June 2016 b. Exhibit 2: * GOMOR, dated 11 March 2013 * twelve letters of support for removal of GOMOR, dated between March and June 2016 c. Exhibit 3, documents confirming the applicant's OER appeal was sent and, on 7 January 2016, delivered to HRC. CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Regular Army commissioned officer in the Chaplain's Corps, and executed his oath of office on 9 September 2007. He was promoted to captain (CPT) on 17 March 2008, was deployed to Afghanistan in 2009, and, in October 2010, was assigned to a transportation unit at Fort Eustis. 2. On 18 November 2011, while assigned to Fort Eustis, his commander initiated a flag because of the applicant's APFT failure. a. DA Form 5500, dated 24 January 2012, shows he met body fat standards (his actual body fat percentage was 26 percent; the maximum authorized body fat percentage was 26 percent). b. In August 2012 the applicant took a record APFT and, while the DA Form 705 provided by counsel indicates the applicant failed the alternate aerobic event (walk), the flagging action for APFT failure was removed, effective 4 August 2012, suggesting he passed that event. c. The August 2012 DA Form 705 also reflected the applicant did not meet height/weight standards. A DA Form 5500, dated 3 August 2012, showed the applicant was 1 percent over his authorized body fat percentage, however, another DA Form 5500, dated 6 August 2012, stated, as of that date, he was 1 percent under the authorized body fat percentage. d. DA Form 4856 (Developmental Counseling Form), dated 15 November 2012, prepared by the applicant's unit commander (CPT RJW), stated the applicant had previously been flagged for height/weight failure, but, effective 8 November 2012, that flag was removed. The applicant disagreed with the counseling, claiming he never failed to meet height/weight standards. Rather, he maintained those who performed the test had done so incorrectly. When he was taped by the battalion command sergeant major, he was found to have met the standard, with a margin of 2 or 3 percent below what had previously been asserted. He also contended he had not received proper notice of this flagging action when it was initiated. 3. In or around January 2013, he received the contested OER; a referred/relief-for-cause OER covering 8 months of rated time for the period 2 May 2012 through 7 January 2013. His rater was MAJ JFL, Battalion Executive Officer; his intermediate rater was MAJ BJG, Brigade Chaplain; and his senior rater was LTC MAG, Battalion Commander. The contested OER shows: a. Part II (Authentication), block d (This is a referred report, do you wish to make comments?) indicates this was a referred report, and the "Yes" block is marked, reflecting comments were attached. All signed the report. b. Part  IVa, the rater placed an "X" in the "Yes" block for 4 out 7 values. He placed an "X" in the "No" block for "Respect," "Selfless-Service," and "Duty." c. Part IVb. * subsection b1 (Attributes), rater placed an "X" in the "Yes" block for "Mental," and "No" for the attributes of "Physical" and "Emotional" * subsection b2 (Skills), rater placed an "X" in three of the "Yes" blocks, while leaving the "Tactical" blank * subsection b3 (Actions (Leadership)), rater marked "Yes" in 7 blocks, and "No" for "Assessing" and "Learning" d. Part IVc (APFT (Army Physical Fitness Test): Pass, and a "Yes" following height/weight entries. e. Part Va (Performance and Potential Evaluation (Rater) – Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block and entered the following comments: Overall a surprisingly disappointing performance by a decent Chaplain. [Applicant] served unselfishly and provided adequate support to the Soldiers and Families of the [battalion]. However, any positive influence he had in the organization was overshadowed by his inability to meet and maintain basic Soldier standards of Physical Fitness and Military Bearing. During this rating period, [applicant] was counseled on numerous occasions both verbally and in writing in reference to his emotional and disrespectful vocalizations and mannerisms toward senior commissioned officers. When given an opportunity to recover, he failed to complete all of the tasks prescribed in the plan of action and continued to have disrespectful outbursts and display disdain for the officers in his chain of command. His actions displayed poor judgment, poor leadership and poor decision-making that are at direct odds with the rank, grade and position he holds as a Chaplain in the United States Army. His behavior has caused me to question the guidance and counsel he provides to young Soldiers who are facing adversity. Due to the nature of this report, the rated officer has not completed or initiated an Army Multi-Source Assessment and Feedback/360 as required by AR 350-1. f. Part Vc (Comment on Potential for Promotion), it states "Do not retain, do not promote. [Applicant's] ministry is better suited for the civilian population." g. Part VI (Intermediate Rater) included the following comments: [Applicant's] ability to perform ministry within the military environment is questionable at best. While he worked hard during this rating period to make himself available to Soldiers, [applicant] also displayed an inability to control his emotions under duress. He was openly insubordinate toward two superior officers during this rating period, demonstrating a loss of Military Bearing and a complete disregard for the realities of military authority. [Applicant] was counseled, coached and mentored by his Chain of Command, and the Chaplain Corps, yet failed to correct his deficiencies. Do not promote. h. Part VIIa (Senior Rater - Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Do Not Promote" block. The senior rater also indicated she senior-rated eight officers of this grade, and noted a DA Form 67-9-1 (Officer Evaluation Report Support Form) had not been received and considered in the applicant's evaluation and review. i. Part VIIb (Potential Compared with Officers Senior Rated in the Same Grade), the senior rater rated the applicant "Below Center of Mass – Do Not Retain" and in Part VIIc, the senior rater entered the following comments: [Applicant] has put forth tremendous effort to be a valuable and contributing member of the Chaplain's Corps as a pastor and counselor of Soldiers. However, he has not been accepting of his personal responsibility to adhere to required standards as a commissioned officer in the U.S. Army. [Applicant] repeatedly displayed emotional outbursts in which he was insubordinate to his supervisor and the Brigade Chaplain. In spite of continuous coaching and mentoring, [applicant] has consistently displayed an inability to adapt to the standards required within this unit and the United States Army. No Officer Support Form was submitted with this OER for consideration based on the nature of this report. Supporting documentation has been submitted for review and approval of this report. 4. On 6 February 2013, the brigade commander, Colonel (COL) JAR, provided a supplementary OER review, stating she (the brigade commander) had found the OER to be complete and correct, as written. She noted the applicant had been counseled on numerous occasions for being insubordinate. She further stated he had displayed behaviors unbecoming of an officer and chaplain, and had failed to meet height/weight standards. 5. On 13 February 2013, the applicant submitted comments on the contested OER. He essentially stated: a. His rater's assertions that his positive influence was overshadowed by his inability to meet, and maintain basic Soldier standards of fitness and military bearing were false. He noted he passed his APFT during the rating period, and comments regarding military bearing were based on two private incidents where he was required to defend himself against a toxic leader (his rater) and his intermediate rater (the brigade chaplain). He provided details about both incidents, and asserted all negative comments stemmed from them. b. He further stated, he found it difficult to stand by and watch when his rater demeaned, threatened and screamed at subordinates. He contended the contested OER was an "emotional outburst from them," and was based on his willingness to stand up for himself and his Soldiers when warranted by their leadership methods. 6. There is no indication the applicant requested a commander's inquiry. (He did file an appeal, but it was not sent until the last day of the regulatory 3-year time limit. It was received by HRC a day after the time limit had expired). 7. On 11 March 2013, the Chief of Transportation, Brigadier General (BG) SEF reprimanded the applicant for: * 30 October 2012, he failed to report for duty, and was unprofessional and disrespectful towards a superior commissioned officer * 17 December 2012, he was again disrespectful to a superior commissioned officer in tone and by making inappropriate comments * on multiple occasions, he failed to report to 0630 hours Accountability and Physical Training formation 8. On 18 March 2013, the applicant acknowledged receipt of the GOMOR, and, on 25 March 2013, he provided a written response and requested local filing of the GOMOR. He stated, in effect: a. On 30 October 2012, at about 0830, he told his noncommissioned officer (NCO) and his chaplain's assistant he was in a counseling session. He did not know he had to attend a formation or inform his rater. Regardless, he acknowledged there was no excuse for losing his military bearing, and he apologized. b. On 17 December 2012, he had a casual conversation regarding work and personal items with the brigade chaplain (his intermediate rater). Over the previous 4 months, they had engaged in many conversations, and because all were assumed to be confidential, he believed their conversation that day was no different. He never intended to offend the brigade chaplain; he regretted what happened and was sorry. 9. On 11 April 2013, after carefully considering the circumstances surrounding the incident, all matters submitted by the applicant in defense, extenuation and/or mitigation, as well as the recommendations of subordinate commanders, Major General (MG) LDW, Commanding General (CG), U.S. Army Combined Arms Support Command, directed placement of the GOMOR in the applicant's OMPF. 10. On 24 June 2013, elimination action was initiated against the applicant based on derogatory information in his OMPF. On 22 October 2013, a BOI convened to determine if the applicant should be recommended for separation or retained. After careful consideration of the evidence, the board recommended retaining the applicant, and stated in their findings: * on 30 October 2012, the applicant failed to report for duty, and was unprofessional and disrespectful to a superior commissioned officer; he admitted to the incident, and it was deemed isolated with no pattern * on 17 December 2012, he was again disrespectful to a superior commissioned officer; he admitted to the incident, and it was deemed isolated with no pattern * no documented evidence was found of failing to report for 0630 Accountability and Physical Training formation 11. On 22 November 2013, the Chief of Transportation, COL (Promotable) JPS stated, after careful consideration of the applicant's case and the findings and recommendations of the BOI, he closed the case without further action. 12. The applicant provides: a. Five DA Forms 3349, dated between February 2012 and April 2013, for right knee pain. With the exception of the permanent profile, dated 16 July 2012, all are temporary. [A physical profile is based on six body systems: "P" = physical capacity; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each factor has a numerical designation, with "1" meaning a high level of fitness; "2" indicating some limitations; and level "3" reflecting significant limitations. Profiles can either be permanent (P) or temporary (T).] (1) Temporary profile, dated 7 February 2012, showing a level "3" for "L." Item 6 (APFT) indicates he is able to do sit-ups and push-ups, but must use the bike for an alternative aerobic event. (2) Temporary profile, dated 22 March 2012, showing a level "3" for "L." Item 6 states he is able to do sit-ups and push-ups, but must use the bike for an alternative aerobic event. (3) Temporary profile, dated 2 April 2012, showing a level "2" for "L." Item 6 reflects he is able to do sit-ups and push-ups, and can either walk or use the bike for an alternative aerobic event. (4) Permanent profile, dated 16 July 2012, shows a level "2" for "L." He was directed not to perform the 2-mile run for the APFT; rather, to use any one of the three alternative aerobic events (walk, swim, or bike). (2) The next (and last) physical profile, dated 15 April 2013, is temporary, and for right knee surgery, post-operative. It shows a level "3" for "L," and the profile precludes from taking the APFT. b. DA Form 705 with an entry for a record APFT, dating from August 2012, indicating the applicant was a "No-Go" for Body Composition/Weight, and a "No-Go" for the walk (an alternative aerobic event). c. DA Form 5500 showing he was 1 percent under the authorized body fat percentage (meeting standard). d. Two DA Forms 268, both dated 15 October 2012, with the first reflecting the applicant was flagged due to APFT failure effective 11 November 2011; the second indicating the flag was removed for APFT failure on 4 August 2012. e. Two letters of support, dated in August and October 2013, that were submitted during the period he was being considered for elimination. One is from a Corps Chaplain, COL MJC, and the other was by Chief Warrant Officer 3 (CW3) CAH and his spouse. The Corps Chaplain recommended retention, and further proposed a rehabilitative reassignment. CW3 CAH indicated the applicant was his supporting chaplain, and he and his spouse detailed a tragic situation involving their grandson in which the applicant provided excellent support. f. Nine OERs addressing rating periods covering rating period both four prior to and five after the contested OER. (1) Four OERs, received while a CPT, and covering rating periods from December 2007 through May 2012. All are for the positions of squadron or battalion chaplain. The raters rate him "Outstanding Performance, Must Promote" and "Best Qualified," and favorable comments by intermediate raters (all chaplains). While senior rater comments are also favorable, only one OER offers a senior rater potential comparison, for which he was rated center of mass (COM). (2) Five OERS for rating period after the contested OER, addressing January 2013 through June 2016. * one report is for a staff position, the remainder for duties as a battalion chaplain * one, on a DA Form 67-9, rates him as "Outstanding Performance, Must Promote" and "Best Qualified," no intermediate rater, and the senior rater placed him at COM for potential * remaining OERs are on a DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1 (warrant officer one)-CW2 OER) * all are favorable, with one showing a rating of "Excels" by the rater, and two reflecting him as "Most Qualified" by senior raters g. Twelve letters of support regarding removal of the GOMOR. One is by a commanding general (BG DGE), three from current and former battalion and brigade-level commanders, a battalion command sergeant major, and a number of senior officers (some of whom are chaplains). All speak highly of the applicant, and advocate the removal of the GOMOR from his OMPF. The unanimously endorse the applicant has learned from, and overcome his past mistakes, and thus merits the removal of the GOMOR. REFERENCES: 1. AR 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. The regulation in effect in 2012 was the version dated June 2012. a. Paragraph 1-9 states evaluation reports are assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer. (1) Performance is 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 Department of the Army Pamphlet 623-3. (2) 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. (3) 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. Paragraph 2-18 (Mandatory Review of Officer Relief and Academic Failure Evaluation Reports). The first U.S. Army officer or DA civilian in the chain of command or supervision who is senior to the individual directing the relief will review the "Relief for Cause" OER. The review will include: * ensuring the narrative portions of the OER contains factual information that fully explains and justifies the reason for the relief * a verification that the derogatory information has been accurately reflected, and the report was prepared as prescribed in the regulation * the affected officer has had the opportunity to provide comments and have those comments reviewed c. Paragraph 3-18 (Prohibited Narrative Techniques) outlines those techniques that are prohibited when preparing narratives. This includes anything aimed at making specific words, phrases, or sentences stand out from the rest of the narrative, such as excessive use of capital letters. d. Paragraphs 3-28 states the rated Soldier has the opportunity to sign the report and will decide whether or not he or she will submit comments, placing an “X” in the “YES” or “NO” box on the form. e. Paragraph 3-26 states any report with negative comments or adverse information will be referred to the rated officer by the senior rater for acknowledgment and an opportunity to comment before being submitted to Headquarters, Department of the Army (HQDA). f. Paragraph 3-36 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. (1) For reports that have been completed and filed in the Soldier's OMPF, substantive appeals will be submitted within 3 years of the OER "THRU" date. Administrative appeals will be considered regardless of the period of the report. (2) 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. Paragraph 3-54 ("Relief for Cause" Report). A "Relief for Cause" OER is required when an officer is relieved for cause regardless of the rating period involved. It is defined as an early release from a specific duty directed by superior authority based upon a decision the officer has failed in his or her performance of duty. The report must specifically indicate who directed the relief and will clearly explain the reason for relief. h. Paragraph 4-11 states the burden of proof rests with the appellant to justify deletion or amendment of a report. The appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the report under consideration, and action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility or administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. 2. AR 600-37 (Unfavorable Information) provides that an administrative memorandum of reprimand may 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. 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 supporting documentation furnished by the recipient must be reviewed and considered before a filing determination is made. b. A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance folder. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached. Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with AR 600-37, chapter 7. c. Paragraph 7-2 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 proof 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. d. Also in paragraph 7-2 is guidance regarding the transfer of memoranda of reprimand to the restricted portion of the OMPF. It states such an appeal is based on proving the intended purpose has been served, and their transfer would be in the best interests of the Army. The burden of proof rests with the recipient of the memorandum and substantial evidence must be provided to show these conditions have been met. 3. AR 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data. a. 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. b. Appendix B states both the DA Form 67-9 and a GOMOR are to be filed in the performance section of the OMPF. GOMORs may only be filed in the OMPF on the order of a general officer or by direction of an officer having general court-martial jurisdiction over the individual. 4. AR 600-8-29 (Officer Promotions), currently in effect, prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list. Chapter 7 provides for SSBs. SSBs are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion. a. Paragraph 7-2 states SSBs may be convened under Title 10, U.S. Code, section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army discovers one or more of the following: (1) An officer was not considered from in or above the promotion zone by a regularly-scheduled board because of administrative error (SSB required). (2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary). (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). b. A material error is defined as being of such nature that in the judgment of the reviewing official (or body), had it been corrected at the time the officer was considered by the board that failed to recommend him/her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion. Reconsideration may also be granted when material information was missing from the officer's file when seen by a promotion board. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR). Paragraph 2-11 contains guidance on ABCMR hearings and it states 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. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record, including independent evidence he provided, is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. With regard to removing the contested relief for cause/referred OER. a. Counsel notes administrative errors as part of the basis for removal, however, the evidence does not appear to support counsel's contentions: * while counsel views entering "No" for "Respect," "Selfless Service," and "Duty" to be inconsistent with the applicant's performance; these are subjective ratings and reflect the considered judgment of the rater * counsel argues the applicant's passing of his APFT contradicts the "No" for "Physical," but he was flagged for APFT failure since November 2011, and remained flagged for 3 of the 8 rated months * counsel states rater's narrative said applicant failed APFT; rater actually wrote," inability to meet basic Soldier standards of Physical Fitness and Military Bearing" * counsel noted rater's use of capitalization by capitalizing "Physical Fitness and Military Bearing"; the regulation prohibits excessive capitalization * rater's comment, "[applicant's] ministry is better suited for the civilian population" violates paragraph 3-20 (Prohibited Comments), AR 623-3: * the regulation prohibits comments that draw attention to the differences in religion * this comment does not appear to draw attention to difference so much as to indicate the applicant's suitability based on his conduct during the rated period * allegations applicant did not report to unit formations, contradicted by the BOI, convened to determine whether he would be retained: * the purpose of the BOI was to give the applicant a fair and impartial hearing to determine if he should be retained in the Army * the BOI's scope and resulting recommendations were limited to either retention or elimination * the BOI findings had no bearing on whether any information addressed in either the contested OER or the GOMOR was accurate b. Where the senior rater described the applicant's alleged inability to "adhere to required standards of a commissioned officer," counsel asserts the senior rater must have been articulating an inaccurate impression the applicant had failed his APFT, but the language is broad enough to equally refer to his disrespect toward his superiors, behavior the applicant acknowledges. c. As to substantive errors, counsel contends the two incidents of insubordination have been overblown, and, because they were isolated, they should not serve to overshadow the applicant's otherwise noteworthy duty performance. This report, however, was based on a relief for cause that was an outcome of the incidents of insubordination. As such, it does not seem unreasonable that those incidents would have a significant impact on the narrative comments and overall ratings. d. OERs are intended to represent the considered opinion and objective judgment of rating officials at the time of preparation. The applicant bears the burden of proof to justify deletion of the report, and must provide evidence that is of a strong and compelling nature, not merely proof of the possibility of an administrative error or factual inaccuracy. * applicant affirms the validity of the two incidents that served as the basis for the relief for cause contested OER, and acknowledges he was wrong * applicant failed his APFT, and was flagged from November 2011 to August 2012, a period of over 8 months * he provides profiles indicating a right knee injury, but, with the exception of a temporary profile issued after the contested OER, none prevented him from taking the APFT using alternative aerobic events * based on the foregoing, it does not appear counsel and the applicant have offered sufficient proof to overcome the presumption of regularity and provide a basis to remove the contested OER 3. Concerning, the GOMOR, once 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 proof of a clear and convincing nature that the document is untrue or unjust, in whole or in part. a. The applicant acknowledges the incidents of insubordination are accurate and takes responsibility for his misconduct. (1) Counsel asserts, however, the elimination BOI did not find sufficient evidence that he failed to report to physical training. (2) As noted above, however, the BOI's purpose was limited to ensuring the applicant received a fair and impartial hearing to determine if he should be retained in the Army. The BOI's findings had no bearing on whether the misconduct described in the GOMOR was or was not accurate. (3) Given what has been noted above, it does not appear either counsel or the applicant have met the burden of proof to show, in a clear and convincing manner, the GOMOR was either unjust or untrue. b. As an alternative, counsel requests the Board consider moving the GOMOR to the applicant's restricted folder. The regulation permits this when it is determined the GOMOR has served its purpose and its transfer would be in the best interests of the Army. Factors that favor moving the GOMOR include: * it has been more than 3 years since the GOMOR was issued * he has accepted responsibility for the behavior that caused the GOMOR and has learned from his mistakes * he has had favorable OER ratings after the GOMOR, with one showing a rating of "Excels" by the rater, and two reflecting him as "Most Qualified" by senior raters * counsel has submitted numerous letters of support from senior Army leaders, all unanimously endorse the applicant has learned from, and overcome his past mistakes 4. Should the Board decide to move the GOMOR to the applicant's restricted folder within the OMPF, and as a matter of equity, it would be appropriate to permit the applicant the opportunity to have his file evaluated by an SSB and considered for promotion to MAJ. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160016472 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160016472 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2