ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 September 2019 DOCKET NUMBER: AR20160019549 APPLICANT REQUESTS: * removal of his general officer memorandum for record (GOMOR), dated 11 March 2013, from his Official Military Personnel File (OMPF) * removal of his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 9 October 2012 through 14 February 2013 from his OMPF APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 2 October 2016 * DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 18 November 2013 * two DA Forms 67-9 for the period 9 October 2011 to 31 January 2014 * Chief of Transportation, Office of the Chief of Transportation, Fort Lee, VA, memorandum, dated 3 February 2014, subject: Officer Elimination Action, [Applicant] * Chief, Officer Retirements and Separations, U.S. Army Human Resources Command (HRC) memorandum, dated 14 November 2014, subject: Closing of Elimination Action * Self-authored memorandum, dated 18 November 2014, subject: Acknowledgement of Receipt of Filing Determination * HRC memorandum, dated 28 November 2014, subject: Application for U.S. Army Reserve Appointment * two DA Forms 67-10-1 (Company Grade Plate OER) for the period 1 February 2014 through 27 March 2015 FACTS: 1. The applicant states: a. He was denied entry into the U.S. Army Reserve due to having a GOMOR and referred OER in his OMPF and this was confirmed by the Officer Accessions Branch when he called after receipt of his denial of application. The technician he spoke with said he would only be allowed to continue his military service with the permission of this Board. b. He was not found to have committed any point of the GOMOR or referral OER by a Field Board of Inquiry appointed by the Chief of Transportation on 18 November 2013 and with a recommendation to retain him. The Chief of Transportation concurred with the findings. c. His Brigade S-1, 7th Transportation Brigade, still filed these documents in his records after the conclusion of the board of inquiry and left the action open. d. He had to resort to involving his Senator and Congressman in order to get his case closed and this was officially done on 14 November 2014. Even after all of this, the Brigade S-1 and the command group offered no substantial help in correcting his records or guiding him on how to do so. He was told it was on him. He believes this was a blatant attempt to make him a candidate for separation via the 2014 Officer Separation Board because of personal bias. e. All of his OERs before and after these incidents reflect positive remarks from his chain of command showing the type of officer he was. 2. Having prior enlisted service in the U.S. Army Reserve, the applicant accepted an appointment as a Reserve commissioned officer in the rank of second lieutenant on 5 May 2006. 3. On 6 January 2012, a Soldier under the applicant's command authority, Staff Sergeant (SSG) X____ X. X____ (SSG X____) was involved in a vehicle accident in which he was charged with obstruction of justice, leaving the scene of an accident, and driving under the influence. 4. On 7 January 2013, a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) was initiated on the applicant for a commander's investigation. 5. On 8 February 2013, the applicant provided a sworn statement in which he stated or indicated, in part: a. He met up with SSG X____ at Manhattan's on Saturday, 5 January 2013, after SSG X____ learned he would probably be there anyway. SSG X____ sent him a text asking if he was considering going out that night to watch the Vikings-Packers wild card game. He called him back and told him that he was considering going to Manhattan's since it was right up the street (approximately 2 minutes travel time) from his hotel, but he was unsure if he was actually going since he had a headache at the time. SSG X replied that he would probably go to Manhattan's too, or words to that effect. b. He got .there (Manhattan's) around 2200 hours or so and stood behind the bar to watch the rest of the game since there was no seating on the TV side, and there was a live band playing as well behind him. c. He saw SSG X____ and talked to him for a while about his warrant packet, the unit, sports, future assignments, etc., and he left around midnight. He knows for sure that when he laid down and set his alarm in his room, his phone said 0015 hours. d. He saw SSG X____ consume alcohol, but he did not know how much he had to drink. He (Applicant) drank one full and one half 12 ounce Budweiser in the bottle, three glasses of water, and drank a birthday shot with some locals he had recognized from the time he had been in Virginia. e. SSG X____ bought his own drinks as far as he knew and he purchased the applicant's second beer on his own while he (Applicant) was out on the smoking porch, but he (Applicant) gave him the money for it f. He did not recall anyone else at the bar with him and SSG X_____; however, he did know if anyone met up with anyone else because he was not with him the whole time. g. SSG X____ did not appear to be intoxicated when he arrived at or left the bar and he did not know if he was driving his private automobile home from the bar. h. He asked SSG X____ if he would be ok to get home before he left and he told him that if all else fails to call someone, even him if he could not drive and that he would not mind since he lived right up the street, to which SSG X____ replied that he was "good." i. His executive officer called him the following morning, 6 January 2013, around 0700 hours to inform him of SSG X____'s accident and driving while intoxicated (driving under the influence). He called Lieutenant Colonel (LTC) X____'s blackberry several times and got no answer so he ended up calling Major L____, the battalion executive officer. He did not get into details with Major L____ or include in his report that he was with SSG X____ that night/early morning. However, when LTC X____ finally called him back that afternoon he told him and asked if he could met him in his office the following day to tell him of his presence at the bar so there would not be any misconceptions. LTC X____ said to talk to him at the motor pool formation the following morning for an office time. He (Applicant) was never allowed to give his full report of his presence at Manhattan's to LTC X____ because when he went to see him, he instantly placed him under investigation and told him to tell his side to legal, not him, or words to that effect. j. SSG X____ had attended going away dinners and company gatherings after hours at restaurants and he had seen him at a couple of bars that he had been since there were only a few locally. He did not remember specific times and dates, but he (Applicant) always went alone and left alone. k. He did not consider SSG X____ a friend, there was no personal relationship with him and SSG X____, SSG X____ was one of his NCOs and he socialized with him to the extent he looked out for the welfare of his Soldiers. This meant that if he was invited to a gathering or event, he made an effort to briefly attend so that his Soldiers got to know him and feel comfortable approaching him if and when the Soldier had an issue. l. He had in the past gone to bars/restaurants or otherwise socialized with enlisted Soldiers in his unit when they had a few going away gatherings within the unit, not coordinated by him and open to NCOs and above as well as their spouses. m. If he went to a bar, he went alone. Other NCOs in his unit have been at bars he was at and he usually left once he spoke to whomever he saw or vice versa and he eventually ended up leaving. People knew what bars he went to, Newport News was a small area. 6. On 10 January 2013, SSG X____ provided a sworn statement that shows, in part, he texted and phoned the applicant about going out and they both agreed to go to Manhattan's Pub and they both showed up at about 2230 hours, had about four beers and a shot of Patron. He also stated: a. The applicant left the bar about 0130 hours on 7 January 2013 and he left a little after 0200 hours. b. It was raining and he was in the middle lane and instead of taking a right on Jefferson, he had to go straight and as he drove he noticed the road coming to an end, so he went to turn right, but he slid and went over the curb wrecking his car. 7. His DA Form 67-9 for the period 9 October 2012 through 14 February 2013 shows, in part, in: a. Part IV (Performance Evaluation – Professionalism), he received "No" markings for integrity, duty, conceptual, and building; a "Yes" marking indicating developmental tasks were recorded on a DA Form67-9-1a and quarterly follow-up counselings were conducted. b. Part V (Performance and Potential Evaluation), he received an "Unsatisfactory Performance, Do Not Promote" marking and the comments, "[Applicant's] time in command ended earlier than anticipated based on founded allegations of fraternization, preferential treatment of Soldiers, and rendering a false official statement. His conduct caused me to lose confidence in his ability to command his company, undermined good order and discipline in the unit and caused me to question his integrity and fitness to continue serving as a commissioned officer. I do not believe he possesses the potential for continued service in the United States Army. [Applicant] does not possess the potential for service at the next higher grade." c. Part VII (Senior Rater), he received a "Do Not Promote" rating and the comments, "I removed [Applicant] from command based on founded allegations of fraternization, preferential treatment of Soldiers, and rendering a false official statement. His conduct violated Army regulation, was prejudicial to good order and discipline and led me to my loss of confidence in him to lead Soldiers. I do not believe [Applicant] possesses the potential for continued service in the United States Army. 8. On 11 March 2013, the applicant received a GOMOR for fraternization, preferential treatment of Soldiers, and making a false official statement. He acknowledged receipt of the GOMOR and indicated he would submit written matters within 7 calendar days. He understood he waived his right to respond if he failed to submit written matters within 7 calendar days. 9. On 25 April 2013, the applicant acknowledged receipt of his referred OER for the period 9 October 2012 through 14 February 2013. 10. On 29 April 2013, counsel for the applicant provided a response to the applicant's referred OER. Counsel stated the command initiated the referred OER and GOMOR during the same timeframe and he requested the referred OER not be finalized until a decision was made on the rebuttal (to the GOMOR). Counsel cited administrative and substantive errors that included the following: a. LTC X____ did not conduct the required counseling and the OER form itself is inaccurate. The applicant's DA Form 67-9 (for the period 9 October 2012 through 14 February 2013) shows LTC X____ provided him a DA Form 67-9-1a (Developmental Support Form) and that follow-up counseling was conducted. This is not true and the applicant was not given initial counseling on his OER by LTC X____. He was not provided any formal counseling except for the counseling concerning the initiation of the investigation into his behavior. These actions are contrary to the mandatory language in Army Regulation (AR) 623-3 (Evaluation Reporting System), paragraph 2-12, which states, in part, that "the rater will provide a copy of his or her support form within 30 days after the beginning of the rating period." b. It is not clearly established that the referred OER is a true "change of rater" OER as indicated. The applicant was told he was going to be temporarily relieved of command pending the investigation. Since that time, the applicant had not been informed of who was in his new rating change and whether his rater had been changed to someone other than LTC X____. The applicant was informed he would not receive a relief for cause OER, but instead a referred OER. c. It was only at the time that the command furnished the referred OER and the GOMOR to the applicant that he received the opportunity to respond. Additionally, even though his military counsel had previously requested that she be provided a copy of the investigation, none was initially provided. Counsel and the applicant dispute all of the derogatory information relied upon by LTC X____ and Colonel R____ in evaluating the applicant's performance, leadership attributes, and the narratives and recommendations concerning his promotion potential and potential for retention in the service. d. The referred OER was somewhat premature according to the provisions of the AR 15-6 (Procedures for Administrative Investigations and Boards of Officers) and AR 623-3. The rebuttal process was designed to give the applicant the opportunity to rebut the findings of the AR 15-6 investigation and they argue that the applicant did not commit the offense of fraternization, make a false or misleading statement to the investigator, and he did not show actual or perceived favoritism and; therefore, the facts relied upon in the OER are erroneous and should be removed. 11. On 30 April 2013, counsel provided a response, with sworn statements from members of the unit, on behalf of the applicant through his chain of command to the Chief of Transportation. Counsel indicated the applicant was not provided a complete copy of the AR 15-6 investigation until 21 March 2013 and the following arguments, in part: a. The evidence does not support the allegation that the applicant interacted with SSG X____ on the basis of "equality," also there is no credible evidence that his behavior concerning SSG X____ was detrimental to good order and discipline. Both elements have to be present to substantiate the charge of fraternization. b. While the AR 15-6 investigation and the removal of the applicant as commander undoubtedly did adversely affect morale, this cannot be used to establish an element of fraternization. c. SSG X____'s sworn statement given to the investigating officer on 10 January 2013 should not be given any credibility because the statement is contradicted by the police complaint. If the criminal complaint and subsequent conviction can be relied upon as being accurate, it is unlikely SSG X____'s recollection of that morning was accurate. d. The AR 15-6 investigation does not substantiate that the applicant showed favoritism towards Soldiers in his unit. The applicant denied showing favoritism and, in fact, the investigating officer seemed to admit in her findings that she was relying on the perception of favoritism that she picked up in the investigation. e. First Lieutenant (1LT) X____'s statement is entirely incredible and unsupported. f. Numerous allegations were made about leave, pay, basic allowance for housing benefits, etc., but none of the allegations have any support more than "we think" or "we believe." g. The investigating officer used the Sexual Harassment/Assault Response and Prevention Program investigation to support the allegation that there was a perception that the applicant showed favoritism or engaged in preferential treatment. Sergeant First Class (SFC) X____ provided an email and she was willing to provide the chain of command a statement supporting the fact that she found the noncommissioned officer (NCO) chain of command was the problem and her comments regarding "toxic leadership" were not directed at the applicant. h. The applicant did not violate LTC X____'s order not to contact members of his unit. The applicant stated he did in fact speak to members of the command after the order was issued, but he failed to provide the context of his admission. The applicant went back to his office after receiving the no contact order to get his personal belongings and leave for that day. While in his office, 1LT X____ approached him and he told her he was being temporarily removed from his position. (1) He did not discuss the matter any further with her that day than to give her brief guidance on where he was going. He also spoke to other current and former members of his command who contacted him. He gave them similar explanations. In his office, when he told 1LT X____ he was leaving, 1LT X____ came over and hugged him and told him to keep his head up or something similar. (2) Later, members of the unit contacted him to check on his welfare because he had left the command to go to his mother's bedside because it was believed she was going to die. He did not contact anyone affirmatively or discuss the investigation, with the exception of Mrs. X____. i. The applicant called SSG X____ on the morning of 7 January, prior to going to LTC X____'s office. After he met with LTC X____, he did not contact SSG X____. However, he did subsequently contact SSG X____'s wife because he wanted to find out about SSG X____'s broken ribs. SSG X____'s wife passed the phone to SSG X____ before he could stop her. This was an error in judgement, but not a willful violation of the order. The applicant is unsure when he made this call. The applicant denies ever telling SSG X____ to contact members of the command and he is adamant that he never asked SSG X____ to influence any NCO or their testimony and that the conversation that SSG X____ describes in his statement never happened. There are no other statements indicating the applicant attempted to influence the NCOs regarding their cooperation with the investigation. j. The applicant denies all allegations in the sworn statement of SFC X____. k. The applicant never had a relationship with SSG X____ and there is no proof of any inappropriate behavior. When Sergeant X____ came to his office he closed the door because she is a legal NCO and would talk about legal issues. l. It is difficult to address allegations that the applicant committed preferential treatment concerning basic allowance for housing applications, leave requests, denying taking Uniform Code of Military Justice action against members of his command. It seems that his was the opportunity for certain NCOs to express their frustration without getting their way. The allegations have no documentary evidence. There are no dates to establish when violations occurred. Also, the investigating officer seemed to have abandoned this line of questioning, but addressed it by merely saying, "there is certainly a perception he provided preferential treatment." m. First Sergeant (1SG) X____ engaged in behavior designed to undermine the applicant's command authority and subvert his decision-making process. Commander have the authority to decide when to give an Article 15, chapter a Soldier, flag for a weight control issue, or take other adverse action. The applicant was only responsible for consulting, listening to and working with his NCO chain. However, when you read the statements of 1SG X____ and SFC X____, their allegations are not that the applicant did not consult them, their complaints are that he did not agree with them and do as they recommended. This problem was further exacerbated by the fact that 1SG X____ frequently went over the applicant's head directly to the battalion commander. This behavior did not contribute to a good working relationship; however, the chain of command had the ability to counsel 1SG X____ on this and to prevent it to a large extent, but this did not happen. If the statements in the AR 15-6 investigation are weighed and the statements making allegations against the applicant were compared to those alleging that 1SG X___ made comments and acted in a way to subvert the commander's authority, Counsel suspects 1SG X___ would have made more statements against the applicant. n. 1SG X____ informed the battalion commander and company executive of SSG X____'s arrest, but he did not inform the applicant. On that Sunday, the applicant repeatedly called the battalion commander to discuss this matter with him personally and to explain what he knew about the incident, but he received no response. Later, prior to the no contact order, the applicant learned that SSG X____ was in the battalion commander's office during the time he was calling and he was providing a statement. The initial statement made by SSG X____ was not provided as part of the investigation and that statement may differ from his later statement. Counsel advised he desired a copy of the later statement. o. In her 29 April 2013 statement, 1LT X___ discussed a recent serious issue she had with 1SG X____ in which he convinced her to sign a form which resulted in an adverse action for SSG X____ by deleting him from orders. 1LT X____ believed 1SG X____ provided her misleading and false information in order for her to sign the form. 1SG X____ told her SSG X____'s physical training profile prevented him from being eligible for a position. This incident is corroboration that the real issue in the company concerning good order and discipline is more tied to the 1SG destroying the command climate and undermining the applicant's authority. This is further supported by AR 15-6 investigation and by the statements of various individuals who indicated that the 1SG would frequently vent his displeasure with the company commander's way of doing things, where the company commander smoked, how the company commander would directly interact with Soldiers, etc. p. The applicant is a good, ethical and dedicated officer who has sacrificed for the Army and for Soldiers who have worked for him. Prior to the allegations, he had stellar evaluations. 12. On 30 April 2013, the applicant's chain of command recommended permanent filing of the GOMOR in the applicant's OMPF. 13. On 20 May 2013 after carefully considering all matters available and the recommendations by the applicant's chain of command, the commanding officer directed permanent filing the GOMOR in the applicant's OMPF. 14. On 3 February 2014, the Chief of Transportation, Office of the Chief of Transportation, advised the Commander, HRC, of elimination action taken against the applicant for derogatory information on 5 June 2013. He stated that after careful consideration of the applicant's case, findings and recommendations of a board of inquiry, he closed the case without further action. 15. On 10 February 2014, the applicant provided a rebuttal to his referred OER and cited the following administrative and substantive errors: a. LTC X____ did not conduct the required counseling and the OER form itself is inaccurate. b. It is not clearly established that the referred OER is a true "change of rater" OER as indicated. c. The entire basis for being removed from command and receiving the GOMOR and the referred OER was unfounded. The formal findings of the separation board considered all of the allegations and determined that he did not commit any misconduct. 16. On 14 November 2014, the Chief, Officer Retirements and Separations, HRC, advised the applicant that on 5 June 2013, the Chief of Transportation initiated an elimination action based on derogatory information and as a result, he was being retained by a field Board of Inquiry that was conducted on 18 November 2013. He was also advised that this office had received a show cause recommendation on or about 9 January 2014. Therefore, the Fiscal Year 2014 recommendation to show cause would be closed and his DA Form 268 had been closed. Instructions were provided to him on applying to the Department of the Army Suitability Evaluation Board (DASEB) for removal of documents in his OMPF pertaining to his show cause for retention on active duty. 17. On 18 November 2014, the applicant acknowledged receipt of a copy of the closing elimination action. 18. On 28 November 2014, the applicant was advised his request for appointment in the U.S. Army Reserve was considered by the Officer Accessions Branch, HRC; however, based on the established eligibility requirements, he was not selected for appointment. 19. On 1 April 2015, the applicant was honorably discharged. 20. A review of the applicant's OMPF via the HRC interactive Personnel Electronic Records Management System shows the GOMOR and referred OER are filed in the performance section of his OMPF. 21. The applicant's OMPF is void of any evidence he applied to the DASEB for removal of documents in his OMPF pertaining to his GOMOR or show cause for retention on active duty prior to his separation from the Army. Additionally, there is no evidence he appealed his referred OER. 22. By regulation (AR 623-3), evaluation reports accepted by HQDA 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. 23. By regulation (AR 600-37), 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. To support alteration or removal of the document from the OMPF, an individual has the burden to provide clear and convincing evidence that the document is untrue or unjust, in whole or in part, to support its removal from the OMPF. The applicant has not met the regulatory burden of proof. 24. By regulation (AR 600-8-24), the purpose of a board of inquiry is to give the Soldier a fair and impartial hearing to determine if he or should be retained in the Army. The board of inquiry recommendations were limited to either retention or elimination and its findings had no bearing on a Soldier's OER or GOMOR. ? BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was warranted. Based upon the findings of the AR 15-6 investigation conducted on 18 November 2013, after the two documents were already posted to the applicant’s OMPF, the Board concluded that granting relief by removing the GOMOR and the DA Form 67-9 were appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * deleting from his record the General Officer Memorandum of Reprimand, dated 11 March 2013 * deleting from his record DA Form 67-9 for the rating period 20121009 – 20130214 * placing a statement in his record for the rating period 20121009-20130214 as non-rated time 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. Army Regulation 600-20 (Army Command Policy) prescribes the policy and responsibilities of command which include the wellbeing of the force, military discipline and conduct, the Army Equal Opportunity Program, and the Army Sexual Assault Victim Program. Paragraph 4-14b states relationships between Soldiers of different rank are prohibited if they compromise, or appear to compromise, the integrity of supervisory authority or the chain of command; cause actual or perceived partiality or unfairness; involve, or appear to involve, the improper use of rank or position for personal gain; are, or are perceived to be, exploitative or coercive in nature; or create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission. 2. Army Regulation 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 evidence 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 chapter 7. c. 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. d. Unfavorable information filed in the Army Military Human Resources Record (AMHRR) that indicates sub-standard leadership ability, and a lack of promotion potential, morals, or integrity must be identified early, and shown in those permanent official personnel records that are 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 may be the subject of an appeal for transfer to the restricted folder. Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers. The above documents may be appealed on the basis of proof that their intended purpose has 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 have been met. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR, including the OMPF. Table B-1 states a memorandum of reprimand is filed in the performance folder of the OMPF unless directed otherwise by an appropriate authority (DASEB or this Board). 4. 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. 5. 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) AR20160019549 11 1