BOARD DATE: 24 April 2018 DOCKET NUMBER: AR20170004045 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 24 April 2018 DOCKET NUMBER: AR20170004045 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, removal of a DA Form 67-9 (Officer Evaluation Report (OER)) for the rated period 1 July through 2 November 2003 (hereafter referred to as the contested OER) from his official military personnel file (OMPF). 2. The applicant states: a. He respectfully requests the Board invalidate and remove his evaluation report for the rating period inclusive of 1 July through 2 November 2003 because the content of this report precludes the correction of errors and retention of the report would result in an injustice. He is eligible for promotion and it will clearly be an injustice if this inaccurate OER remains a part of his permanent record and affects his ability to be selected for promotion. b. Maintaining this OER in his permanent record is contrary to the purpose and intent of Army Regulation (AR) 623-105 (Officer Evaluation Reporting System). The remarks in his evaluation indicating he was relieved of command following the results of an AR 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation concerning an "allegation of inappropriate conduct with a female Soldier attached to his unit" are incorrect. This inaccurate information affected the entire evaluation report and resulted in an unjust and inaccurate evaluation during this specific rating period. New information that was unknown and unverified when the report was prepared has been brought to light. This new information is so significant that it would have resulted in a higher evaluation had it been known or verified at the time the report was prepared. c. Specifically, new information concerning the completion of an AR 15-6 investigation and allegations of inappropriate conduct reviewed by his senior rater at the time, the Vermont Office of the Staff Judge Advocate, and his attorney. [The new information to which the applicant refers is a letter, an affidavit, and two memoranda provided by his senior rater, the Vermont Army National Guard (VTARNG) Office of the Staff Judge Advocate, and his attorney] This new information provides conclusive evidence that there was never an AR 15-6 investigation conducted and the allegations of inappropriate conduct referenced in the report were fabricated by the complainant. This new information shows his Senior Rater for this period, General (GEN) M___ (Retired), concluded that the OER must be removed to avoid an injustice. GEN M___ also confirmed that the information included in the contested OER at the time of preparation does not represent the considered opinion and objective judgment of the rating officials. 3. The applicant provides: * letter from Howard E. V___, dated 4 November 2016 * affidavit from William R. B___, dated December 2016 * memorandum from GEN M___, dated 19 January 2017 * memorandum from Gregory C. K___, dated 15 March 2017 CONSIDERATION OF EVIDENCE: 1. Following prior enlisted service, the applicant was appointed as a Reserve second lieutenant in the VTARNG on 21 August 1992 and he executed an oath of office on that date. He served continuously as a member of the ARNG in various positions of increased responsibility and through several periods of active service. He is currently serving in the Active Guard Reserve (AGR) in the rank of major (MAJ)/O-4. 2. The contested OER (DA Form 67-9), which the applicant received as a captain/O-3, resides in the performance folder of the applicant's OMPF, and contains the following information: a. Part I (Administrative Data): (1) Block h (Reason for Submission) contains the entry "Relief of Cause." (2) Block i (Period Covered) contains the entry "From 1 July 2003 thru 2 November 2003." (3) Block g (Unit, Organization, Station…) contains the entry, "Co C, 2d Battalion, 172nd Armor… Bennington, VT…" b. Part II (Authentication): (1) Block a. (Rater): Lieutenant Colonel (LTC) Thomas M. W___, Battalion Commander, (2) Block c. (Senior Rater): Colonel (COL) Matthew A. M___, Brigade Commander, (3) Block d. (This is a referred report, do you wish to make comments?): contains an "X" indicating the evaluation is a ""referred report; there is no "X" in the "No" or ""Yes"" block to indicate whether comments were attached, and (4) Block e. (Signature of Rated Officer): does not contain the Applicant's signature c. Part III (Duty Description), block a (Principal Duty Title) contains the entry "Company Commander." d. Part IV (Performance Evaluation – Professionalism (Rater)): (1) Block a. (Army Values) shows the following were marked "No," indicating the rated Soldier did not display the following attributes during the rated period: Honor; Integrity; and Respect. (2) Block b.1. (Leader Attributes) contains a "No" block mark in for the leadership attribute "Emotional – self-control; calm under pressure. (3) Block b.3. (Actions) Leadership)) contains a "No" block mark in leadership "Decision-Making – Employs sound judgement, logical reasoning and uses resources wisely." d. Part V (Performance and Potential Evaluation (Rater)): (1) Block a. (Evaluate the rated officer's performance during the rating period and his/her potential for promotion), contains an "X" in the Unsatisfactory Performance, Do Not Promote" block. (2) Block b (Comment on specific aspects of the performance) states, "I suspended this officer from command on 19 August 2003. I believed his conduct and lack of judgement compromised his ability to command. [Applicant] admitted to inappropriate conduct with a female soldier attached to his unit. [Applicant] was officially relieved on [3 November 2003] following the results of the informal [AR] 15-6 investigation initiated in accordance with AR 600-20 [Army Command Policy]. While [Applicant] demonstrates a satisfactory tactical and technical proficiency, he does not possess the proper leader attributes or professional character for promotion to field grade." e. Part VII (Senior Rater): (1) Block a. (Evaluate the rated officer's promotion potential to the next higher grade), contains an "X" in the "Do Not Promote" block. (2) Block c. (Comment on performance/potential): "[Applicant] unfortunately has not exhibited the values of honor, integrity, loyalty, and selfless service in every aspect of his performance as an officer, and most especially as a company commander. His fraternization with an enlisted Soldier under his command led to a most regrettable incident in which he was arrested for assaulting the enlisted Soldier and later paid a fine in civil court. [Applicant] was relieved of command by the Assistant Division Commander and I placed a letter of reprimand in his performance file. In a previous rating period, [applicant] was counseled by his battalion commander for allowing alcohol at his Company’s unit party in the armory without O6 approval. [Applicant] has little potential as a troop leader and should not be promoted." 3. Orders 329-001, issued by the State of Vermont, on 25 November 2003, released the applicant from his position as a company commander, and transferred him to a liaison officer position. The assignment/loss reason reads, "MORAL OR PROFESSIONAL DERELICTION." 4. The applicant's OMPF does not contain evidence showing he submitted an appeal for correction, transfer, or removal of the contested OER from his OMPF to the U.S. Army Human Resources Command (HRC). 5. In support of this request, the applicant provides: a. A letter, dated 4 November 2016, from Howard E. V (LTC Judge Advocate General (JAG), VTARNG, Retired), that indicates he reviewed his assistance to the applicant and recalled representing him in his capacity as a VTARNG JAG major between 2003 and 2004 concerning a referred OER prepared by LTC Tom W___. He further stated that he recalls that no there no formal AR 15-6 investigation was done and so LTC W___ did not ultimately have the full and complete information. In his opinion, a reasonable view of the allegations eventually proved them to have been fabricated by the complainant. He searched his archives and did not find any formal AR 15-6 investigation related to this matter. b. An affidavit, dated 8 December 2016, from William R. B___ (Senior Paralegal Noncommissioned Officer (NCO) in the Office of the State Judge Advocate(OTSJA)), wherein, he states that he did not locate any evidence of an AR 15-6 investigation conducted regarding the applicant. Records in the OTSJA date back to earlier than 2005. c. A memorandum, dated 19 January 2017, from the senior rater [now a retired brigadier general] of the contested OER, who states: (1) Please, accept this as a request for removal of an evaluation report from the applicant's permanent record. The evaluation report covers the rating period 1 July 2003 through 2 November 2003. This request relates to substantive inaccuracies that were the basis for negative remarks and conclusions that resulted in an invalid evaluation report. Removal is permitted under the circumstances in accordance with AR 623-105 (Officer Evaluation Reporting System), paragraph 3-57(c). (2) During the aforementioned rating period, he was the applicant’s senior rater. Completion of the OER was based on inaccurate and unverified information. Specifically, remarks that he was relieved of his command following the results of an AR 15-6 investigation concerning an "allegation of inappropriate conduct with a female Soldier attached to his unit" were incorrect. This inaccurate information affected the entire evaluation report and resulted in an unjust and inaccurate evaluation of him during this specific rating period. (3) New information that was unknown and unverified when the report was prepared has been brought to light and is so significant that it would have resulted in a higher evaluation had it been known or verified at the time the report was prepared. Specifically, he reviewed new information concerning completion of an AR 15-6 investigation and allegations of inappropriate conduct and have concluded there was never an AR 15-6 investigation conducted and the complainant fabricated the allegations of inappropriate conduct referenced in the report. This new information was obtained from the VTARNG Office of the Staff Judge Advocate and LTC (R) Howard E. V___. Based on this new information, he understands now that the information included in the applicant’s OER at the time of preparation does not represent the considered opinion and objective judgment of the rating officials, including himself as his senior rater. (4) The applicant is eligible for promotion and it will clearly be an injustice if this inaccurate evaluation report remains a part of his permanent record and affects his ability to be selected for promotion. In addition, maintaining this evaluation report in his permanent record is contrary to the purpose and intent of AR 623-105 (Name regulation). He respectfully requests the invalidation and immediate removal of the Applicant's OER for the rating period inclusive of 1 July 2003 thru 2 November 2003 because the content the report precludes the correction of errors and retention of the report would result in an injustice to the applicant. d. A memorandum, dated 15 March 2017, from the VTARNG G1 (LTC K___) endorsing the applicant’s request to this Board. The memorandum states he concurs with the applicant’s request for removal of the contested OER. He reviewed the applicant’s packet requesting removal and found no indication of malicious action or intent on the part of the applicant. REFERENCES: 1. AR 15-6 establishes procedures for investigations. This regulation or any part of it may be made applicable to investigations that are authorized by another directive, but only by specific provision in that directive or in the memorandum of appointment. a. Paragraph 3-13, states that a formal investigation, if a verbatim record of the proceedings was directed, the transcript of those proceedings, with a completed DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) as an enclosure, and other enclosures and exhibits will constitute the report. In other formal boards, a completed DA Form 1574, with enclosures and exhibits, will constitute the report. b. In an informal investigation, the report will be written unless the appointing authority has authorized an oral report. Written reports of informal investigations should use DA Form 1574; however, its use is not required unless specifically directed by the appointing authority. Every report, oral or written, on DA Form 1574 or not-should include findings and, unless the instructions of the appointing authority indicate otherwise. c. A written report of proceedings should be submitted, in two complete copies, directly to the appointing authority or designee, unless the appointing authority or another directive provides otherwise. If there are respondents, an additional copy for each respondent should be submitted to the appointing authority. d. An informal investigation may use whatever method it finds most efficient and effective for acquiring information. Although witnesses may be called to present formal testimony, information also may be obtained by personal interview, correspondence, telephone inquiry, or other informal means. Informal procedures are not intended to provide a hearing for persons who may have an interest in the subject of the investigation. No respondents will be designated and no one is entitled to the rights of a respondent. The investigating officer may still make any relevant findings or recommendations, including those adverse to an individual or individuals. 2. AR 623-105, in effect at the time, prescribes the officer evaluation function of the military personnel system. It is linked to AR 600-8 and provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System and Officer Evaluation Reporting System. It also provides guidance regarding redress programs including commander inquiries and appeals. a. Chapter 3 (Evaluation Principles), paragraph 3-2, (Evaluation requirements), show that rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army. Rating officials must make honest and fair evaluations of Officers under their supervision. On the one hand, this evaluation will give full credit to the rated individual for their achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, and Headquarters, Department of the Army selection boards and career managers can make intelligent decisions. b. Chapter 3, paragraph 3-32 (Referred Reports) states, relief for cause reports will be referred to the rated officer by the senior rater for acknowledgment and comment before they are sent to Headquarters, Department of the Army (HQDA). c. Chapter 3, Section V (Restrictions), precludes unverified derogatory information from being included in evaluation reports. It does not preclude verified information obtained independently from being entered on the OER. d. Chapter 3, Section X (Modification to Previously Submitted Reports), paragraph 3-57 (Basic Rule) states an evaluation report accepted by HQDA and included in the official record of an officer is presumed to be administratively correct, have been prepared by the properly designated rating officials, and represent the considered opinions and objective judgment of the rating officials at the time of preparation. e. Paragraph 3-57(b) states requests that an accepted report be altered, withdrawn, or replaced with another report will not be honored. The following will not be used to alter or withdraw a report; neither will they be included in the OMPF: (1) Statements from rating officials that they underestimated the rated officer. (2) Statements from rating officials that they did not intend to rate him or her as they did. (3) Requests that ratings be revised. (4) Statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential. Therefore, it is imperative that rating officials ensure that evaluations are accurately recorded on the OER prior to signing that report. (5) Statements from rating officials claiming reports were improperly sequenced from the field to HQDA. (6) A subsequent statement from a rating official that he or she rendered an inaccurate "center of mass" or lower evaluation of a rated officer’s potential in order to preserve "above center of mass" ratings for other officers (e.g. those in a zone for consideration for promotion, command, or school selection) will not be a basis for appeal. f. Paragraph 3-57(c) states an exception to paragraph b above is granted only when (1) information that was unknown or unverified when the report was prepared is brought to light or verified, (2) this information is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared, (3) see paragraph 3-58 (Newly Received Favorable Information) and 3-59 (Newly Received Derogatory Information) for procedures. g. Chapter 6 (Officer Evaluation Redress Program) emphasizes the fact that an erroneous evaluation report should be corrected as soon as possible. As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. Substantive appeals must be submitted within 3 years of the evaluation report completion date. Appeals must be processed through the National Guard Bureau, Evaluations and Appeals Branch, prior to submission to the Officer Special Review Board. The burden of proof rests with the appellant to produce evidence that establishes clearly and convincingly that: (1) the presumption of regularity will not be applied to the report under consideration; and (2) 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 of 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. Failure to submit an appeal within this time frame will require the appellant to submit their appeal to the Army Board for Correction of Military Records. 3. AR 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF. a. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. Once placed in the OMPF, the document becomes a permanent part of that file. b. The Authorized Documents list provides guidance for filing documents in the OMPF. It shows the DA Form 67-9 will be filed in the performance folder of the OMPF. 4. AR 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. Paragraph 7-2 (Appeals for removal of OMPF entries) shows that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. DISCUSSION: 1. The applicant contends the contested OER should be removed from his OMPF because no formal AR 15-6 investigation was completed in reference to remarks in his evaluation and that he was relieved of command for an allegation of inappropriate conduct with a female Soldier attached to his unit. 2. The contested OER shows the applicant received three "No" entries under Army Values. The rater indicated the applicant's performance was unsatisfactory and he should not be promoted. His rater also provided comments that the applicant admitted to inappropriate conduct with a female Soldier attached to his unit. The rater further commented the applicant was officially relieved on 3 November 2003 following the results of the informal 15-6 investigation. 3. The applicant’s senior rater provided comments in the OER pertaining to the applicant’s fraternization with an enlisted Soldier under his command that led to a most regrettable incident in which the applicant was arrested for assaulting the enlisted Soldier and led to a fine in civil court. The senior rater also commented that the Assistant Division Commander relieved the applicant and he (the senior rater) placed a letter of reprimand (unavailable) in the applicant’s performance file. 4. A paralegal NCO in the state OTSJA relates that evidence of the AR 15-6 investigation could not be located and the records go back to 2005. The JAG officer who represented the applicant recalls that there was no "formal 15-6 done." 5. Now, more than 14-years later, that senior rater endorses removing the contested OER from the applicant’s OMPF based on "new information," including that a record of a formal investigation can’t be located even though they searched back to 2 years after the incident. 6. Neither the applicant’s rater for the contested OER nor the Assistant Division Commander who relieved the applicant provided any input regarding the applicant's current request. 7. The applicant and the authors of the documents he provides state the contested OER should be removed because there is no record of a "formal AR 15-6 investigation." This is most likely because the AR 15-6 investigation was, as stated in the applicant's OER, an "informal AR 15-6 investigation." 8. An AR 15-6 formal investigation requires the transcript of those proceedings, with a completed DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) as an enclosure, and other enclosures and exhibits will constitute the report. In contrast, for an informal investigation the report may be written or oral, depending on what the appointing authority authorized. Nevertheless, it is possible that the former unit or chain of command had difficulty finding a formal investigation because the investigation was informal and the requirements were not the same. 9. The evidence of record shows the contested OER was a referred report and the applicant did not indicate he would provide comments. He did not sign the contested OER. a. There is no available evidence indicating the applicant attempted to file a timely appeal or remove the contested OER (referred report) from his OMPF within 3 years of the completion date. b. The applicant failed to submit clear and convincing evidence of a strong and compelling nature to show the contested OER does not represent the considered opinion and objective judgment of all the rating officials at the time or that it is factually inaccurate. 10. The letters and memorandums of support are noted; however, the applicable regulatory guidance states that an evaluation report accepted for inclusion in the official file of a rated officer's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. There is insufficient evidence to refute the presumption of administrative regularity with respect to contested OER. 11. By regulation, in order to remove a document from the OMPF, there must be compelling evidence to support its removal. It appears, the applicant failed to submit evidence of a compelling nature to show the contested OER filed in the performance folder of his OMPF is/are untrue, in error, or unjust. BOARD DATE: 24 April 2018 DOCKET NUMBER: AR20170004045 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170004045 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170004045 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2