ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 September 2019 DOCKET NUMBER: AR20160019052 APPLICANT REQUESTS: removal or masking of his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 9 November 2008 to 2 October 2009, hereafter referred to as the contested OER, from his Official Military Personnel File (OMPF). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 22 November 2016 * Letter of Recommendation, dated 17 November 2016 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 the contested OER for the period 9 November 2008 through 2 October 2009 needs to be masked or removed from his OMPF based on the actions that he has already served during that time period. This OER has allowed his progression to stall and his career may be in jeopardy. The contested OER is unjust due to the fact that he was never counseled or given the opportunity to be counseled for the actions. As a result, he served his punishment and is now being reviewed for the same thing that he already served the time for. He owned up to his mistakes and he has moved on from that to continue his career. 3. Review of the applicant's service records shows: a. Having prior honorable enlisted service, the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 26 March 2004. On 13 July 2009, he was promoted to the rank of captain. His contested OER shows in: (1) Part Ih (Reason for Submission) – the entry "Relief for cause," (2) Part IId – a "No" marking indicating he declined to make comments and he was advised the report was a referral report, (3) Part IVa (Army Values) – "No" markings for honor, integrity, courage, loyalty, respect, selfless-service, and duty, (4) Part IVb (Leader Attributes/Skills/Actions) – "No" markings for interpersonal, motivating, developing, and building, (5) Part IVd (Were Developmental Tasks Recorded on DA Form 67-9-1a (Officer Evaluation Report Support Form) and Quarterly Follow-up Counselings Conducted?) – a "No" marking, (6) Part Va (Potential for Promotion) – an "Unsatisfactory Performance, Do Not Promote" rating and Part Vb (Comment on Specific Aspects of the Performance), the following comments: [Applicant] has performed in an unsatisfactory manner during this rating period resulting in being relieved of his company command. Although [Applicant] performed his missions effectively as a company commander, his character and integrity were brought into question. He did not inspire confidence in his subordinates nor did he foster an ethical climate within his company with his actions. [Applicant] was relieved of command for the following reasons. First, he made false official statements. Second, he conducted himself in a manner unbecoming an officer. Third, he wore a combat patch which he was not entitled to. Lastly, he wore decorations on his Army uniform which he had not earned. All these actions undermined [Applicant's] ability to represent himself as a credible member of his unit and his authority as a commander. [Applicant] did not display the Army values needed to command his company nor did he represent the officer corps in a positive manner. (7) Part Vc (Comment on Potential for Promotion) – the entry, "[Applicant] should not be promoted due to his inability to conduct himself in a manner which represents the Army values. He is not an officer who should continue to lead subordinates." (8) Part VIIa (Senior Rater Promotion Potential to the Next Higher Grade) – a "Do Not Promote" rating and a "No" marking indicating a completed DA Form 67-9-1 was not received with this report and considered in the evaluation and review, and (9) Part VII c (Senior Rater Comments on Performance/Potential) – the entry, "[Applicant] did not perform to standard during this rating period. Although successful at completing assigned missions and proficient tactically, he has failed to live up to the Army Values as indicated by the rater comments. Potential for promotion is limited. No support form provided." b. He provided a letter of commendation, dated 17 November 2016, from Lieutenant Colonel X___ X X____, who stated the applicant arrived in the command a while ago and immediately expressed himself as an officer that wanted to work and do well in whatever he is tasked with. The applicant is facing retirement due to some bad paper in his file, but he is a worthy officer to remain in the force. He also stated it was his desire as a senior officer to keep the applicant and teach, coach, and mentor him to the point of provided better paperwork to show he is a benefit to the military and to see him promoted to his next rank and continue as a force multiplier for the military. c. A review of his interactive Personnel Management System records shows the Contested OER is filed in the performance section of his OMPF. d. His record are void of any evidence he appealed the contested report. 3. By regulation (AR 623-3): a. Evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. An appeal will be supported by substantiated evidence. An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered. b. Paragraph 4-11 states to justify deletion or amendment of a report, the applicant must produce evidence that established clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was 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 rested with the applicant. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board concluded there was a lack of evidence to show that an error or injustice was present which would warrant changing the applicant’s military record. The Board found that the applicant’s contested OER accurately depicted the performance of duty during the rating period and that all appropriate processing procedures were followed. ? 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. 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, U.S. Code, 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 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 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. a. Paragraph 4-7 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. An appeal will be supported by substantiated evidence. An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered. The determination regarding adequacy of evidence may be made by Headquarters, Department of the Army (HQDA), Evaluation Appeals Branch. Appeals based on administrative error only will be adjudicated by HQDA Evaluation Appeals Branch. Alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board. These are generally claims of an inaccurate or an unjust evaluation of performance or potential or claims of bias on the part of the rating officials. b. Paragraph 4-8 states substantive appeals will be submitted within 3 years of an evaluation report "THRU" date. Failure to submit an appeal within this time would require the appellant to submit his or her appeal to the ABCMR. The Army Special Review Board will not accept appeals over 3 years old or appeals from Soldiers who are no longer serving on active duty or as part of the U.S. Army Reserve or Army National Guard. c Paragraph 4-11 states to justify deletion or amendment of a report, the applicant must produce evidence that established clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was 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 rested with the applicant. 3. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides procedural guidance for completing and submitting evaluation reports and associated support forms to HQDA that are the basis for the Army's Evaluation Reporting System. ABCMR Record of Proceedings (cont) AR20160019052 4 1