ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 January 2019 DOCKET NUMBER: AR20170007436 APPLICANT REQUESTS: Reconsideration of his previous request for removal from his official military personnel file (OMPF) of: * Relief for Cause Officer Evaluation Report (OER) for the period 12 June 1998 through 27 January 1999 * Headquarters (HQ), 2nd Infantry Division General Court-Martial Order Number 2, dated 14 January 2000 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * OER for the period 12 June 1998 through 27 January 1999 * DD Form 458 (Charge Sheet), dated 9 March 1999 * HQ, 2nd Infantry Division General Court-Martial Order Number 2, dated 14 January 2000 * extract of the applicant's Record of Trial (4 pages) and Court-Martial Findings Worksheet, undated * DA Form 4137 (Evidence/Property Custody Document), initiated on 24 April 2002 * OER appeal to the U.S. Army Personnel Command (PERSCOM) (currently known as the U.S. Army Human Resources Command (HRC)), dated 2 October 2002 * Army Board for Correction of Military Records (ABCMR) Record of Proceedings, Docket Number AR2002081344, dated 6 February 2003 * three third-party letters of support, dated 8 and 14 November 2016 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2002081344, on 6 February 2003. 2. The applicant states: a. He is appealing the decision of the ABCMR, dated February 2003, denying his request to remove a Relief for Cause OER from his OMPF, as well as the promulgating documents related to his court-martial in 1999. He contends that the OER contains language that was inconsistent with the Army regulation in force at the time, was improperly filed in his OMPF, and that the ABCMR made an incorrect decision in 2003 to not remove the OER from his OMPF. b. The OER has unfairly prejudiced him since its filing, culminating in his current situation. Although he has demonstrated, through his continued exemplary conduct as a military intelligence officer over the past 18 years, that any lessons from the episode that led to the Relief for Cause OER and his subsequent court-martial have been learned, the OER contains language that has prejudiced him and extended him from being considered for higher promotion at every gate. Removal of the OER will allow his career to be fairly and accurately considered along with his peers. c. The general court-martial order (GCMO), containing a verbal admonishment issued to him as the sole punishment and sentence for a single specification of conduct unbecoming in 1999, was not based on evidence presented to the court-martial, and has prejudiced him by reflecting misconduct that did not occur every time his personnel file is reviewed. d. The GCMO reflects charges for which he was found not guilty, and also serves as punishment for a single finding of guilty for failing to prevent a female Soldier from engaging in sexual activity with a male Soldier at a restaurant in Seoul, South Korea. The specific finding was a result of several exceptions and substitutions, and not reflective of the actual events that led to the court-martial, nor the evidence that was presented. The related OER, executed prior to his court-martial while an investigation was ongoing, contains false statements, unsubstantiated conjecture, and did not account for the multiple statements specifically describing the actions that he took to prevent such illicit behavior among the two Soldiers. These derogatory documents continue to have an unfairly prejudicial effect each time his personnel file is reviewed. His actions, contrary to what is stated in the Relief for Cause OER as well as the promulgating documents, were in keeping with the good order and discipline of military service, and his account of these events has always been consistent and truthful as noted in the findings. e. He has continued to serve honorably as a military intelligence (MI) officer at increasing levels of responsibility and he has regained the absolute trust and confidence of his senior leadership, peers, and subordinates alike. He received a unanimous decision for retention on active duty from the Department of the Army-initiated show cause board in July 2002. He has continued to maintain a top secret clearance, despite having to explain the derogatory information in his file every time his clearance is renewed, and has been granted access to sensitive compartmentalized information for the past 18 years. He subsequently received multiple awards, decorations, and recognition from the Army to include the Knowlton Award, the Saint Barbara Award, and he was board selected for command as the deputy commander of the 470th Military Intelligence Brigade. He continues to receive support and respect from his former commanders and eight general officers, who he has served under and reviewed his file, in order to remove this derogatory information and restore his genuine record. f. He has integrated lessons learned from his experience into his leadership and mentoring practices where he currently leads training for over 7,300 Ml Soldiers from seven brigade-level commands. In supporting the priorities of Army leadership, he strives to set high standards and demand responsive performance as well as respect for each Soldier's need for dynamic, dedicated, thoughtful guidance and leadership. He works to set an example across the four pillars of personal fitness (mental, emotional, physical, and spiritual). He has never wavered in his commitment to the Army, the Army Reserve, and our Soldiers. g. He humbly seeks to continue his 27 years of loyal and dedicated service. His record of discipline performance both before and after the incident contained in these derogatory documents is reflective of his integrity and ethical character. However, with the continued unfair prejudice caused by those documents, they will prevent him from doing so, but a favorable Board decision will allow continued service to his country. 3. Counsel states: [The applicant] is requesting de novo review of his entire file, and not solely review of the 2003 decision, due to the significant passage of time, as well as the demonstrably unfair prejudice the unfavorable documents have had on his cumulative military service. The issues and facts raised in this request are complicated. However, the difficulty of untangling these matters should not be cause to deny his. On the contrary, because of the complexity of the issues raised, as well as the passage of time from when the documents were filed, a favorable decision from this Board will restore his record. [The applicant] could demonstrate no unfair prejudice caused by the unfavorable information contained within his OMPF when he petitioned the ABCMR in 2002. He maintained his Top-Secret level Security Clearance and was granted access to Sensitive Compartmentalized Information. Additionally, since the Board's decision, he has been promoted from CPT [captain] to LTC [lieutenant colonel], and was centrally selected for command. However, these two documents unfairly prejudiced [the applicant]. He was promoted late from CPT to MAJ [major] and from MAJ to LTC, and will not be promoted with the information currently contained within his OMPF. This is the type of injustice that this Board was empowered to remedy. The Relief for Cause OER was issued to then-CPT [applicant] in 1999 by his rater, [LTC P], who went on to greater scrutiny during the Abu Ghraib scandal. LTC P submitted [the applicant's] Relief for Cause OER, which contained false statements and improper comments regarding an ongoing investigation. In January 1999, at the time the Relief for Cause OER was issued to him, [the applicant] was under criminal investigation for the rape of a subordinate Soldier. Contemporaneous to the issuance of the OER, [the applicant] was initially suspended from command and eventually relieved of his duties as a company commander. Such an investigation is unquestionably serious, but was ongoing at the time the Relief for Cause OER was issued. More importantly, the misconduct for which [the applicant] was being investigated for at the time and referenced in the OER turned out to be inaccurate and untrue. The Relief for Cause OER contains derogatory information that came from the ongoing and incomplete investigation. For example, one of the sentences references, "statements made by Soldiers ..." This language could have only originated from the investigation itself, and not some other independent source. IAW [in accordance with] Paragraph. 3-27.a., AR [Army Regulation] 623-105, (Officer Evaluation Reporting System, 1 October 1997), the controlling regulation for the submission of officer evaluations at the time the OER in question was submitted, "No reference will be made to an incomplete investigation (formal or informal) concerning an officer." [The applicant] was removed from his position as a company commander and suspended pending the outcome of the investigation when he received the Relief for Cause OER. That action was unnecessary, and the current controlling Regulation, AR 623-3 [Evaluation Reporting System], would not have permitted the submission of such an OER. However, even under the old AR 623-105, the rater should not have commented about the investigation within the OER until the outcome of the incomplete investigation had been determined. IAW AR 623-105, "Reports· should not be delayed to await the outcome of a trial or investigation." Para. 3-27.e. AR 623-105. However, in the next subparagraph, f., the regulation describes the process for submitting an addendum to an OER to, "[r]eport verified misdeeds or professional or character deficiencies that were unknown or unverified when the OER was submitted." Para. 3-27.f., AR 623-105. This provision allowed units to submit OERs in a timely manner, even while an investigation was ongoing, make no mention of the investigation, but still permit comment on misconduct once the investigation had been completed. AR 623-105 required that, "No references will be made to an incomplete investigation (formal or informal) concerning an officer." Para. 3-27.a. AR 623-105. References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting an evaluation report to HQDA [Headquarters Department of the Army]. If the rated officer is absolved, comments about the incident will not be included in the OER." Para. 3-27.b. AR 623-105. The present controlling regulation, AR 623-3, has been updated to allow units to hold OERs while an officer is in a suspended or relieved status, pending the outcome of any investigation. The restriction against commenting on incomplete investigations was intended, "[t]o prevent unverified derogatory information from being included in evaluation reports. It will also prevent information that would be unjustly prejudicial from being permanently included in an officer's OMPF, such as charges that are later dropped, or charges or incidents of which the rated officer may later be absolved." Any verified derogatory information may be entered on an evaluation report. For example, when an interim report with verified information is made available to a commander, the verified information may be included in an OER. For all reports, if previously reported information later proves to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the report. The regulation does not define the key terms verified or absolved. However, a review of the subsequent actions taken against [the applicant], to include his court-martial, are exactly the reasons why the regulation was written the way it was. The investigation formed the basis for [the applicant's] court-martial. The record of trial from the [applicant's] court-martial, is the best evidence that the allegations that are contained in the OER were untrue. A panel of officers, able to judge witness demeanor, credibility and candor, believed that no sexual contact between [the applicant] and the subordinate Soldier occurred at all. This conclusion can be extrapolated from the fact that the panel found [the applicant] Not Guilty of a number of sex-related criminal offenses under the UCMJ [Uniform Code of Military Justice], from Rape to Fraternization, which, in 1999, as it does now, criminalized sexual contact between a officers and enlisted Soldiers. No sexual contact, from kissing to some type of sexual assault occurred between [the applicant] and the Soldier. However, that is not what was reflected in the OER. Granted, the outcome of the court-martial was unusual, because [the applicant] was convicted of a charge and specification which had no relationship to the evidence presented. A review of the record of trial, summarized as it is, demonstrates he was absolved of the misconduct reflected in the OER. Most importantly in relation to the discussion of [applicant's] OER, the military judge refused to allow the Prosecution to present the OER in question to the panel until they had redacted the rater's comments related to the investigation. Those comments are discussed in detail below. The second sentence of the OER, "[The applicant] took a female Soldier in his unit out for drinks at a well-known bar and danced with her," whether founded or not, reflects lawful conduct. The next sentence, "He later claimed he took the Soldier directly back to their home installation, although numerous sworn statements showed this statement to be demonstrably false," is untrue, a mischaracterization of both [the applicant] and other Soldiers' statements related to the investigation, but most importantly, is an improper reference to the investigation itself. The next sentence, "[The applicant] took the Soldier and two other junior enlisted members of his battalion to another club," is untrue, but even if it were true, reflects lawful conduct that should not be contained in an OER. The next line, "[The applicant] and the three Soldiers entered a bathroom, where one performed a sexual act in a scene videotaped and replayed on a large-screen television in the club before non-commissioned officers of his own company," is a patently false statement, as reflected in the trial transcript. These statements, taken as a whole, make the OER in violation of AR 623-105. [The applicant] appealed the OER to the OSRB [Officer Special Review Board] in 2001. The OSRB, despite their imprimatur to assume administrative regularity, ignored the provisions of AR 623-105, improperly inserted themselves as a de facto fact finder of [the applicant's] court- martial, ignored the well-reasoned decisions of the military judge and panel, ignored the panel's findings of Not Guilty related to certain statements contained within the OER, ignored the judge's ruling to not allow the OER to be presented without redaction, and ultimately determined that [the applicant] had failed to provide evidence that showed that the incident which led to his relief did not occur and that the statements made by the rating officials were not valid. What the OSRB effectively did was to disregard certain decisions of [the applicant's] court- martial that failed to support their conclusions, adopted other decisions of the court-martial that supported their conclusions, and required [the applicant] to prove his innocence beyond a reasonable doubt before the OSRB, applying a higher standard than that used by the military court systems. The Court-Martial Promulgating Documents. [The applicant's] file also contains his court-martial promulgating documents, reflecting a conviction at trial, as well as the punishment. Although we recognize that a request to review a court-martial conviction is an unusual step, it is necessary in this case. On 27 August 1999, a General Court-Martial convicted then CPT [applicant], by exceptions and substitutions, of one specification of a violation of Article 133, UCMJ, Conduct Unbecoming an Officer. The original Specification of the Article 133, Conduct Unbecoming an Officer, that was presented to the panel, read: "In that [applicant], U.S. Army, did, at ltaewon, Republic of Korea, on or about 9 January 1999, wrongfully take Private First Class P, a Soldier in his company, to Stampers Night Club, buy her drinks, dance with her, go into a bathroom stall with her and several other individuals and stand by and watch as Private First Class P engaged in sexual intercourse with an unknown male." At a point during deliberations, the panel returned to court and asked the military judge if they excepted certain language, whether they could still find [the applicant] Guilty of the Article 133 offense. ·Using the words written on the working copy of the panel's findings worksheet, marked as Appellate Exhibit XXIX, the language of the specification after the panel excepted the proposed language would have read: "In that [applicant], U.S. Army, did, at ltaewon, Republic of Korea, on or about 9 January 1999, wrongfully take Private First Class P, a Soldier in his company, to Stampers Night Club, and buy her drinks." The panel had also at some point in deliberations circled, "To the excepted words, Not Guilty." The military judge, after reviewing the substituted language the panel had proposed, and conferring with counsel on both sides, explained that the panel could not find [the applicant] guilty of the proposed language because it failed to state an offense. In other words, the panel was attempting to convict [the applicant] of lawful conduct. The panel re-deliberated, altered the excepted language that they had originally proposed, and returned with a verdict of Guilty on one Specification of Article 133. The new specification, with the excepted and substituted language that the panel convicted [the applicant], read: "In that [applicant], U.S. Army, did, at Seoul, Republic of Korea, on or about 9 January 1999, wrongfully take Private First Class P, a Soldier in his company, to Seoul Night Clubs, including Stampers, buy her drinks, and stand by and watch as Private First Class P engaged in sexual activity with an unknown male." [The applicant] was charged with but found Not Guilty of False Official Statement, Indecent Assault, and Fraternization. Most importantly for this discussion, the military judge, entered a finding of Not Guilty pursuant to RCM 917 on a specification of Fraternization, meaning that the evidence presented was, even in a light most favorable to the Government, insufficient to sustain a conviction for the offense affected. The language of the Fraternization Charge that was dismissed pursuant to RCM 917 mirrored that of the language of the Article 133 offense for which the panel found [the applicant] Guilty. The only logical conclusion that can be reached from the panel's verdict of Guilty for the Article 133 offense is that they convicted [the applicant] of conduct which the Court had already determined the Government provided insufficient evidence of during the trial to support the conviction. The charged misconduct arose around the actions of PFC P at the club on the night in question. A key piece of evidence centered around a videotape reportedly showing [the applicant] present in the bathroom of the club while PFC P performed a sexual act on another individual. The videotape was referenced in [the applicant's] OER, and its existence or lack thereof was a significant issue. During ClD's [Criminal Investigation Command) investigation of this case, a videotape was obtained from Mr. L, the owner of Stampers Nightclub. The collection of the videotape was annotated on a DA Form 4137, Evidence/Property Custody Document. The 4137 indicates that the videotape was received from Mr. L by Special Agent (SA) T, 221st Military Police Detachment (CID) on 24 April 2002. However, the videotape was not presented at trial, and it's questionable whether anything was contained on it. What is clear, however, is that the videotape, part of the investigation, is improperly referenced in the OER, which again, came from the investigation. Because his sentence did not qualify for appellate review by the Army Court of Criminal Appeals under Article 66, UCMJ, [the applicant] was never able to appeal his sentence, nor obtain any meaningful relief of the conviction. His only relief at this point is this petition. Evidence beyond a reasonable doubt must be presented as to each and every element of an offense in order to sustain a conviction for the offense, and that standard is not relaxed for any offense. Since there was insufficient evidence presented to sustain the Fraternization charge, there is no possible way that sufficient evidence was presented to sustain the Article 133 offense that contained the same language as the Fraternization charge. For the reasons stated above, the Relief for Cause OER and court-martial promulgating order should be removed from [the applicant's] OMPF. 4. The applicant was appointed as a second lieutenant 18 January 1991. He was promoted to CPT on 1 February 1995. At the time of this applicant, he was serving on active duty in the rank of LTC. 5. On 9 March 1999, court-martial charges were preferred against the applicant for: a. Making a false official statement. b. On or about 9 January 1999, did at Itaewon, republic of Korea, wrongfully taking Private First Class (PFC) P, a Soldier in his company, to a night club, buying her drinks, dancing with her, going into a bathroom stall with her and several other individuals, and standing by and watching as PFC P engaged in sexual intercourse with an unknown male. c. On or about 9 January 1999, knowingly fraternized with PFC P (two specifications). d. On or about 9 January 1999, committing an indecent assault upon PFC P. 6. HQ, 2nd Infantry Division General Court-Martial Order Number 2, dated 14 January 2000, shows that on 27 August 1999, the applicant was found guilty of conduct unbecoming an officer and a gentleman on or about 9 January 1999. He was found not guilty of: * making a false official statement * fraternization with PFC P * committing an indecent assault upon PFC P 7. The contested OER is a Relief for Cause OER covering the period 12 June 1998 through 27 January 1999, while he was serving as a company commander of a tactical combat intelligence and electronic warfare company of the 2nd Infantry Division in Korea. The rater was LTC P and the senior rater was BG G. a. In Part IVa (Character), a "No" answer was given to the following four Army Values: Honor; Integrity; Selfless Service; and Duty. A "Yes" answer was given to the following three Army Values: Courage; Respect, and Loyalty. b. Two of the three leader attributes (Mental and Physical) were rated positively. A "NO" answer was given for the "Emotional" leader attribute. Each of the four leader skills were rated to have been positive. Eight of the nine leader actions of leadership were evaluated to have been positive. A "NO" answer was given to "Decision-Making." c. Part V (Performance and Potential Evaluation (Rater)) shows the rater marked in the block indicating "Unsatisfactory Performance, Do Not Promote" and entered the following comments in Part Vb: In accordance with AR 600-20 [Army Command Policy], I relieved [applicant] for cause, of his duties as a company commander. By his own admission, [applicant] took a female Soldier in his unit out for drinks at a well-known bar and socialized with her, even though she was 20 years his junior. He later claimed he took this Soldier directly back to their home installation, although numerous sworn statements showed this statement to be demonstrably false. Instead, [applicant] took the Soldier and two other junior enlisted members of his battalion to another club. There [applicant] and the three Soldiers entered a bathroom, where one performed a sexual act in a scene videotaped and replayed on a large-screen television in the club before noncommissioned officers of his own company. These incidents have eroded my trust in [applicant's] judgement, integrity, and leadership as well as my confidence in his ability to lead Soldiers in our Battalion. I therefore relieved him for cause, of his duties as commander. I do not recommend [applicant] for promotion. Additionally, he should be required to show cause why he should remain in the· Army service. d. The rater entered the following comment in Part Vc: [Applicant's] gifts as a military leader are undeniable but regrettably eclipsed by poor judgement of the kind that led to the events described above. I cannot recommend a career field for future service." e. The senior rater in Part VIIa of the OER evaluated the applicant's promotion potential to the next higher grade and gave him a rating of "Do Not Promote." The senior rater indicated that at the time, he served as senior rater to 14 officers in the applicant's grade. Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) of the OER shows the applicant was rated in the "Below Center of Mass Do Not Retain" block. f. The senior rater entered the following comments in Part VIIc: I concur with the rater's decision, endorsed by the Commanding General, to relieve [applicant], for cause. I also agree with his assessment that [applicant] should not be promoted and that [applicant] should not in the future serve in any troop-leading capacity. His conduct was reprehensible and of a nature that causes me to believe he should not be allowed to continue his military service. [Applicant] should be required to show cause for continued duty in uniform. [Applicant] refuses to sign the report. 8. The OER was signed was the rater and senior rater on 28 August 1999. 9. On 29 December 1999, the applicant, through counsel, submitted a petition for clemency to the general court-martial convening authority. He requested that the finding of guilty and the sentence be disapproved. The request was based on improper voting procedures, former jeopardy, and improper or undue influence. However, the court-martial convening authority approved the findings and the sentence on 14 January 2000. 10. The applicant, through counsel, appealed the OER to the Officer Special Review Board (OSRB). On 30 March 2001, the OSRB returned the appeal without action because it did not contain sufficient evidence of a clear and convincing nature to warrant consideration. 11. The applicant provided three third- party statements of support, given by three general officers that attest to the applicant's character and professionalism and fully support the removal of the adverse documents from his OMPF. BOARD DISCUSSION: 1. The Board considered the applicant’s request with all supporting documents, evidence in the service record, and applicable regulations, policy, and guidance. 2. The OER in question was processed and accepted for filing in the OMPF in accordance with applicable regulations. A report is required when an officer is relieved for cause regardless of the rating period involved. Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty. The Board considered all the evidence submitted by the applicant and counsel. Concerning the removal of the Relief for Cause OER for the period ending 27 January 1999, the rater stated, "By his own admission [the applicant]." Therefore, based on the personal testimony of the applicant, not an investigation as claimed by the applicant and counsel, he was relieved for cause due to his actions. While counsel argues the applicant was found "Not Guilty" during a GOCM for the offenses charged, the applicant had previously admitted to his rater his actions of 9 January 1999 involving subordinate Soldiers. A commanding officer has within his duties and responsibilities the ability to remove an officer who admits to misconduct of a discreditable nature. An OER is presumed to represent the considered opinions and objective judgment of the rating officials at the time of preparation. The applicant (and counsel, when warranted) have the burden of proof to show the Board should not accept the presumption of administrative regularity in the construct and filing of an OER. 3. Regulation provides that records of trial by summary or general court-martial are filed in the performance folder of the OMPF when there is an approved finding of guilty on at least one specification. In this case, the time to appeal the GOCM was during its appellant review. Based on the evidence of record, the applicant did appeal the findings of the general court-martial during its appellant review process; however the general court-martial convening authority rejected the appeal and let stand the finding of guilty of one specification of conduct unbecoming an officer. Again, by his own admission he acted inappropriately on 9 January 1999. Thus he was tried and found not guilty of three specifications, but by substation he was found guilty of one specification. 4. The applicant with counsel must meet the burden of proof to show derogatory information filed in his record is untrue or unjust. The applicant and counsel filed no new evidence of a compelling nature to support their contentions or overturn a previous Board decision. 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 to amend decision of the ABCMR set forth in Docket Number AR2002081344, dated 6 February 2003. SIGNATURE: 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 623-105, in effect at the time, prescribed the policies and tasks for the Officer Reporting Evaluation System. It states in: a. Paragraph 3-27: (1) No reference will be made to an incomplete investigation (formal or informal) concerning and officer. (2) References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the OER to HQDA. If the rated officer is absolved, comments about the incident will not be included in the OER. This restriction is intended to prevent unverified derogatory information from being included in evaluation reports. It will also prevent information that would be unjustly prejudicial from being permanently included in an officer's OMPF, such charges that are later dropped or charges or incidents of which the rated officer may later be absolved. (3) Any verified derogatory information may be entered on·OER. This is true whether the officer is under investigation, flagged, or awaiting trial. While the fact that an officer 1is under investigation or trial may not be mentioned in an OER until the investigation or trial is completed, this does not preclude the rating chain's use of verified derogatory information. For example, when an interim report with verified information is made available to a commander, the verified information may be included in an OER. (4) Reports should not be delayed to await the outcome of a trial or investigation. Reports must be done when due·and contain what information is verified at the time of preparation. (5) Rating officials will initiate an addendum to an OER to report verified misdeeds or professional or character deficiencies that were unknown or·unverified when the OER was submitted. The addendum will ensure that the verified information will be recorded in the officer's official records. However it must not be submitted until completion of the investigation, imposition of punishment, or verification of the information. b. Paragraph 3-50: (1) A report is required when an officer is relieved for cause regardless of the rating period involved. Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty. In this regard, duty performance consists of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards. (2) The minimum time requirements for rating officials do not apply. All rating officials must evaluate; however, any rating official who has not directed the relief, and does not agree with the relief, may state his or her non-concurrence in the proper narrative portion of the report. c. Paragraph 6-6, 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 to represent the considered opinions and objective judgment of the rating officials at the time of preparation. d. Paragraph 6-10 contains guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal. It states that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 6-6 should not be applied to the report under consideration and 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. 3. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the OMPF. Chapter 2 provides detailed guidance and instructions with regard to the initiation, composition, and maintenance of the OMPF. This regulation provides that records of trial by summary court-martial are filed in the performance folder of the OMPF when there is an approved finding of guilty on at least one specification. 4. Army Regulation 600-37 (Unfavorable Information) states 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. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. ABCMR Record of Proceedings (cont) AR20170007436 13 1