ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20170007793 APPLICANT REQUESTS: through counsel, removal of the following documents from his Official Military Personnel File (OMPF): a. general officer memorandum for record (GOMOR), dated 23 April 2015, and b. DA Form 1059 (Service School Academic Evaluation Report), dated 12 March 2015. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 20 December 2016 * Counsel's Brief, dated 6 March 2017, with Exhibits 1 through 5 FACTS: 1. Counsel for the applicant states: a. The applicant's GOMOR is untrue and its presence in his OMPF is wholly unjust. His request is based on the unanimous findings of a Board of Inquiry (BOI) that directly contradicted a majority of the allegations in the GOMOR and the BOI's recommendation that he be retained in the Army, which must be affirmed. The BOI's findings and recommendations prove by clear and convincing evidence that the GOMOR is untrue and its presence in his OMPF is wholly unjust. The BOI found by unanimous vote that: (1) he did not disobey a senior officer nor violate a no-contact order; (2) he did not maltreat or act inappropriately toward junior officers; (3) he did not intentionally neglect to fail to perform his duties under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 4, paragraph 4-2(b)(7); and (4) his actions in disrespecting a senior officer by not leaving his office immediately when directed and soliciting other members of the Clinical Pastoral Education (CPE) Program to purchase his wife's online business "was unprofessional, but did not constitute conduct unbecoming an officer under the Uniform Code of Military Justice (UCMJ) or under the provisions of Army Regulation 600-8-24, chapter 4, paragraph 4-2(b)(8), and did not constitute a pattern of misconduct." b. The BOI's unanimous findings directly contradicted a majority of the allegations in the GOMOR. c. In February 2016, the Department of the Army Suitability Evaluation Board (DASEB) was asked to remove the GOMOR from his OMPF on the grounds that it was untrue and its presence in his OMPF was unjust due to the contradictory findings of the BOI to retain him. In August 2016, the DASEB denied the request. d. The presence of the GOMOR in his OMPF caused him to be passed over for promotion when the lieutenant colonel (LTC) promotion board convened on 11 January 2016. A second pass over will result in his boarding for selective continuation and his earliest available date to retire from 20 years of active Federal service is February 2019. The applicant received his second consideration for promotion to LTC in April 2017. e. The applicant's officer evaluation reports, service school academic evaluation reports, and awards prove the GOMOR should be removed, as its filing in his OMPF is unjust. He held multiple leadership positions and his officer evaluation reports prove his outstanding and distinguished military career. He is loved by Soldiers, respected by peers, and trusted by commanders. He received numerous accolades. g. The DA Form 1059 he received for his dismissal from the CPE Program, dated 12 March 2015, violates Army Regulation 623-3 (Evaluation Reporting System) and is further evidence of the injustice he suffered under the program, the injustice of the issuance of the GOMOR, and the injustice of the GOMOR's official filing, thereby warranting its removal from his OMPF. The DA Form 1059 he received for his dismissal fails to be properly identified as a referred report in block 9 (This is a Referred Report, Do You Wish to Make Comments?). This improper form is further evidence of the injustice he experienced while a student. h. The applicant's DA Form 1059, dated 12 March 2015, violates Army Regulation 623-3 because it includes an "Unsatisfactory" rating that makes it a referred report. The form shows him as having "Achieved Course Standards" in block 11 (Performance Summary); however, he received an "Unsatisfactory" rating in block 12c (Leadership Skills). Pursuant to Army Regulation 623-3, paragraph 3-27a, the "Unsatisfactory" rating in block 12 required the form to be a referred report, generating further annotated comments. The senior rater failed to comply with the regulatory guidance. i. The applicant's DA Form 1059, dated 12 March 2015, violates Army Regulation 623-3 because it includes derogatory comments that would have an adverse impact on his career and which would automatically make it a referred report. Block 14 (Comments) of his DA Form 1059 contains the derogatory comments: "As the senior ranking student and class leader, he failed to develop a good non-threatening relationship with other students in the course resulting in deterioration of the educational process." Being identified as a "failure" in leadership and the cause of implied threatening relationships which "deteriorated" the learning process is derogatory to his career progression regarding leadership potential and essentially obliterates his chances of promotion. Additionally, the derogatory comments are a potentially discriminating factor against him to be considered for selective continuation. Even though his DA Form 1059 contained derogatory comments that will have an adverse impact on his career, it was not identified as a referred report and this violates Army Regulation 623-3. j. Failing to properly identify his DA Form 1059, dated 12 March 2015, as a referred report denied the applicant the due process right of submitting comments and this further proves the continued injustice he suffered. 2. On 6 February 2015, Sergeant F____ W. M____ issued a memorandum for record, subject: CPE Center Incident, in which he stated he overheard an altercation between Chaplain/LTC M____ and the applicant. He stated on Monday, 2 February 2015, he heard Chaplain/LTC M____ give the applicant a direct order in an elevated voice to get out of his office. The reply he heard was too low in volume for him to hear clearly, but those words were spoken in an aggressive manor. Chaplain/LTC M____ repeated his order twice before the applicant exited his office and the building in an aggressive manner. 3. On 10 February 2015, Chaplain/CPT J____ P. L____ issued a memorandum for record, no subject, in which he stated that beginning in early November and extending through early December, the applicant mentioned that his wife had an online business on 8 to 10 occasions. He stated the applicant mentioned his wife's online business on several occasions and he felt like the applicant was trying to directly force him to use the applicant's wife's online business. It was mentioned multiple times to the group and directly to him. He felt like the applicant was trying to intimidate or coerce him and the group. It was very clear that the applicant wanted them to support his family's business venture and to buy from them. On several occasions during the same period, the applicant attempted to get him to buy a cake from his wife. The applicant persisted after being told he would not be home for Christmas and told him he could always use a cake at the holidays. He finally agreed to buy a cake because he did not want any trouble with the applicant. It felt like the applicant was using his rank as he faced him down about buying a cake, his rank was clearly present to him as he sought to pressure him into buying from his wife. Both incidents – being encouraged to use his wife's online store and buying cakes – seemed very inappropriate. 4. On 11 February 2015, Chaplain/LTC R____ M_____ issued a memorandum for record, subject: (Applicant) Response to Instructions, in which he noted the applicant's conduct and behavior as well as his conduct and behavior toward Chaplain/CPT L____. 5. On 17 February 2015, the applicant was counseled by Chaplain/LTC M____ for demonstrating a pattern of disobedience and an insubordinate attitude in his duty performance. He was advised that his disobedience and attitude were impeding the mission success of his peers and contributing to disorder in the CPE Center. The applicant disagreed with the information presented and stated he was unclear regarding the specific accusations he was being counseled about; no facts, details, or dates of accusations were outlined and the description of compliance was unclear and undefined. The applicant acknowledged: a. He was no longer to have contact with his peers outside of specifically defined group interactions, verbatim presentations, didactics, and in-process reviews (IPRs). This included avoiding contact with his peers at his clinical site and any kind of direct contact, such as asking others about his peers, and he had to leave immediately if he came into a situation wherein he was in the same location as a peer. b. He would respect his peers' boundaries while in a group. He would immediately comply if a peer asked him to stop a particular behavior, especially one the peer experienced as intrusive, coercive, or harassing. Under no circumstances was he authorized to invite or demand a private conversation with a peer, even during group time. c. He was to maintain professional military bearing at all times and immediately obey any instructions given to him by Chaplain/LTC M____. d. He would no longer solicit for any private business or activity while in uniform or at any time that he could reasonably be considered to be representing the Army. e. Unsatisfactory performance and/or misconduct would not be tolerated and could result in his administrative separation from the Army. 6. On 18 February 2015, Major P____ E. S____, a licensed clinical psychologist, issued a memorandum, subject: Behavioral Health Care for (Applicant), to the applicant's supervisor and indicated he was currently seeking behavioral health care, his current prescribed plan was such that he should attend behavioral health appointments every 2 weeks for the next 3.5 to 4 months, he had attended all of his scheduled appointments that were approximately 60 minutes in duration, and she recommended he continue his prescribed treatment plan. 7. On 23 February 2015, the applicant's commander advised him that she had received allegations of his possible misconduct, an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was being initiated to ascertain facts surrounding the allegations, and a suspension of favorable personnel action flag was being initiated effective 19 February 2015. 8. On 6 March 2015, an investigating officer was appointed to conduct an informal investigation into allegations surrounding the applicant. 9. On 12 March 2015, the applicant was issued a DA Form 1059 for completion of the CPE Program for the period 9 June 2014 to 12 March 2015. This form shows in: a. item 11b (Performance Summary), he achieved course standards; b. item 12c (Demonstrated Abilities), he received an "Unsatisfactory" rating for Leadership Skills; and c. item 14 (Comments), the comment: "...As the senior ranking student and class leader, he failed to develop a good non-threatening relationship with the other students in the course resulting in deterioration of the educational process...." 10. On 30 March 2015, the investigating officer provided the applicant's commander with the following findings, conclusions, and recommendations: a. Allegation 1: Did the applicant solicit and/or pressure officers or Soldiers to purchase from a private business? (1) This investigation was initiated in response to written and oral statements given by students of the CPE Program. The supervisor of the CPE Program at Fort Gordon, Chaplain/LTC R____ M____, became aware of threatening behavior and alleged misconduct of the applicant during an IPR with the students. In a sworn statement, Chaplain/Captain (CPT) J____ L____, stated that on numerous occasions between early November and December 2014, the applicant mentioned his wife had an online eBay business. He told the group that if anyone was looking for anything in particular that his wife could get it. On two or more occasions, he approached Chaplain/CPT L____ directly and told him that his wife could help him using her business. Chaplain/CPT L____ was feeling intimidated or coerced. (2) In August 2014, the applicant approached Chaplain/CPT C____ H____ and requested he purchase his children's school supplies from his wife's eBay business. When Chaplain/CPT H____ refused, the applicant persisted for several days. (3) Chaplain/LTC R____ M____ was informed about the applicant's solicitation of the CPE Program students and he subsequently brought him in for counseling. He reminded the applicant that the Army and the CPE Program regard that kind of behavior as inappropriate. (4) Chaplain/LTC M____ indicated the individuals he spoke with felt uncomfortable and coerced. The applicant became agitated with the people who he thought told Chaplain/LTC M____ about his actions and left the office only to return and confront Chaplain/LTC M____, announcing that he did not trust him and that he felt betrayed. Chaplain/LTC M____ clarified his position and reiterated the Army's view on such behavior. The applicant became angry and belligerent. Chaplain/LTC M____ saw this behavior as inappropriately aggressive and threatening and he asked the applicant to leave the office. The applicant would not leave, but continued to express his anger toward Chaplain/LTC M____. After expletively instructing the applicant to leave the office did he finally leave. This exchange was heard by other occupants in the building. b. Allegation 2: Was the applicant disrespectful to any officer above him? Did the applicant disobey any order issued by any officer above him? (1) On 18 December 2014 during a peer's verbatim presentation, the applicant interrupted LTC M____ as he intervened in the peers' process. Chaplain/LTC M____ warned the applicant about interrupting his process, but he persisted. After the fourth interruption, Chaplain/LTC M____ raised his voice and told the applicant he needed to stop or he would have to take disciplinary action. The applicant later apologized. (2) On 9 March 2015 during the CPE Program class presentations, the applicant made comments that were offensive and accusatory toward members of the group. As Chaplain/LTC M____ began to critique the presentation, the applicant soon got very loud and defensive and when Chaplain/LTC M____ advised him to end such behavior, he began cursing and confronting Chaplain/LTC M____. Chaplain/LTC M____ told the applicant that he was crossing the line and was becoming insubordinate. There was no indication that the applicant cared what he was told at that point. (3) Chaplain/LTC M____ gave the class specific instructions not to conduct an IPR outside of a formal supervised session and the applicant was not to have any contact with his peers to conduct informal IPRs. On 26 February, the applicant contacted CPT W____ B____, member of the CPE Program class, asking him for assistance with a class project. Additionally he asked CPT L____ to speak with him. CPT L____ specifically stated that this is a direct violation of orders of Chaplain/ LTC M____. The applicant said he did not care what Chaplain/LTC M____ said. (4) Chaplain/LTC R____ R____ was present for three separate counseling sessions in the months of February and March 2015 in which Chaplain/LTC M____ counseled the applicant. He observed in the first counseling session that took place at the CPE Program Center that the applicant displayed a strong contempt and disrespect toward Chaplain/LTC M____, to include an initial laugh and critique of how Chaplain/ LTC M____ prepared the counseling statement. He also observed defensiveness and belligerent behavior that Chaplain/LTC M____ had to correct three separate times due to the applicant's interruptions in the process. c. Allegation 3. Did the applicant maltreat or otherwise act in appropriately toward Soldiers or officers junior in rank to him? (1) Chaplain/CPT H____ wrote that he felt harassed on numerous occasions by the applicant. Since the beginning of the programs, the applicant constantly mocked Chaplain/CPT H____'s accent and frequently asked him to speak so that he could hear his accent. The applicant would then imitate him in a sarcastic and insulting manner. On 19 January 2015 while attending Erskine Theological Seminary after a lecture, the applicant approached Chaplain/CPT H____ several times and asked him why he did not speak up in class. Chaplain/CPT H____ replied he was focused on taking notes from the lecture. This constant questioning by the applicant of Chaplain/CPT H____ continued during and after class. (2) On 12 November 2014, the applicant ordered Chaplain/CPT L____ to speak to him for he did not like Chaplain/CPT L____'s responses in class. The applicant took him outside to the back of the building and demanded to know what he wanted from him and how was he supposed to share his insight. Even though the members of the group were not supposed to have off-line conversations, Chaplain/CPT L____ felt he could not refuse this order from a superior officer. (3) On 9 December 2015, the applicant approached Chaplain/CPT L____, got within a couple of inches from his face, and said, "So you think I was a dick?" Chaplain/ CPT L____ had not said anything to the applicant; this was an unprovoked engagement. The applicant continued with his aggressive behavior. He then abruptly ended and said he was going to talk to the director. (4) Chaplain/CPT L____'s additional concern was that the applicant had repeatedly expressed his need for some sort of relationship with him. It had, at times, seemed almost to be some sort of sexual need. On many occasions, it felt like he was stalking and following him, even when Chaplain/CPT L____ had strongly told the applicant that he had boundaries in place and that he did not want to be around him. Also that he refused to have any sort of relationship or friendship with him, it felt like he was continuing to pursue him. (5) Chaplain/CPT B____ was interviewed and he stated that after a group assignment at a local theater, the applicant approached him in the parking lot and attempted to assist him with some personal issues he was having. Chaplain/ CPT B____ replied that he was working through his situation and that he would be fine. The applicant would not accept that answer and began to get loud and aggressive. As CPT B____ got into his car to drive away, the applicant got in front of his car to impede his progress and continued to yell at Chaplain/CPT B____. Chaplain/CPT B____ was very uncomfortable and he asked him to move. d. Allegation 4: Did the applicant commit any acts of dereliction of duty? On 23 August 2014, the applicant was the on-call chaplain at Eisenhower Army Medical Center. He received a call from the intensive care unit concerning a patient who attempted suicide and wanted a chaplain present. The applicant called the intensive care unit and informed the nurse that he did not think this warranted his presence based on the guidance in the duty chaplain afterhours policy. e. Chaplain/CPT R____ W____, who formerly worked for the applicant, gave an account that during the 3 years at Fort Stewart, he had the feeling of intimidation, experienced the crossing of professional boundaries, and he endured the toxic environment while working for the applicant. f. The IO concluded: (1) the applicant did solicit and/or pressure other members of the CPE Program to purchase from his wife's eBay business; (2) the applicant did disrespect and disobey orders from Chaplain/ LTC R____ M____ on several occasions; (3) the applicant did maltreat and acted inappropriately toward officers junior in rank to him; and (4) the applicant's non-response to an intensive care unit patient in need was unfortunate, but he did not believe it rose to the level of dereliction of duty. g. The IO recommended removal of the applicant from the CPE Program and receipt of a GOMOR for the lack of respect showed toward Chaplain/LTC M____. He also recommended of a command-directed mental health evaluation. 11. On 1 April 2015, the Office of the Staff Judge Advocate found there was sufficient evidence in the record to support the IO's findings and the findings, in turn, adequately supported the IOs recommendations. 12. On 16 April 2015, his commander approved the findings of the IO, approved the recommendation of the IO in regard to removing the applicant from the CPE Program, and agreed with the IO's recommendation of the applicant receiving a GOMOR. He disapproved the recommendation of the IO in regard to a command-directed mental health evaluation. 13. On 23 April 2015, the applicant was issued a GOMOR for disrespecting and disobeying a senior officer; maltreating and acting inappropriately toward junior officers; soliciting other members of the CPE Program to purchase from his wife's online business; failing to follow orders from his supervisor and becoming augmentative, belligerent, and disrespectful toward his supervisor on divers occasions. He continuously solicited members of the CPE Program to purchase items from his wife's eBay business and became persistent when they declined. Additionally, he confronted members of the class on their personal issues and mocked and imitated a fellow classmate who spoke with an accent. 14. On 7 May 2015, the applicant acknowledged receipt of the GOMOR and he elected to submit a statement and/or documents in his own behalf. 15. On 4 June 2015, the applicant submitted his response to the GOMOR. On the same date, he submitted a detailed response to the Army Regulation 15-6 findings, dated 30 March 2015. 16. On 10 June 2015, his chain of command recommended filing the GOMOR in his OMPF. 17. On 22 July 2015 after carefully considering all matters available and the recommendations by the applicant's chain of command, the commanding officer directed permanently filing of the GOMOR in the applicant's OMPF. 18. On 24 July 2015, his chain of command submitted a request for initiation of his elimination. 19. On 6 August 2015, the applicant was notified of initiation of his separation and his requirement to show cause for retention on active duty under the provisions of Army Regulation 600-8-24, paragraphs 4-2(b)(5), 4-2b(7) and 4-2b(8), due to misconduct, moral or professional dereliction. His commander stated the actions were based upon substantiated derogatory activity resulting in a GOMOR, dated 23 April 2015, which was filed in him OMPF. He also stated the applicant was reprimanded for disrespecting and disobeying a senior officer, maltreating and acting inappropriately toward junior officers, and soliciting other members of the CPE Program to purchase from his wife's online business. In 2014 while the applicant was in the program, he failed to follow orders from his supervisor and became augmentative, belligerent, and disrespectful toward his supervisor on divers occasions. He solicited members of the CPE Program to purchase items from his wife's eBay business and became persistent when they declined. Additionally, he confronted members of the class on their personal issues and mocked and imitated a fellow classmate who spoke with an accent. He was advised that in conjunction with this action, a DA Form 268 (Suspension of Favorable Personnel Actions (Flag)) was being initiated. He was advised of his rights and given 30 days to provide a response. 20. On 24 August 2015, the applicant acknowledged receipt of his notification of elimination and election of rights. 21. On 22 September 2015, the applicant submitted his acknowledgements and elections pertaining to his elimination action. He elected to submit a request for a BOI. 22. On 30 September 2015, his chain of command recommended his separation under honorable conditions (general). 23. On 16 October 2015, the applicant was notified to appear before a BOI. 24. On 27 October 2015, a BOI determined that by the preponderance of the evidence and by a majority vote: a. The applicant did commit misconduct, moral or professional dereliction. Specifically, he did disrespect and disobey a senior officer and he did solicit other members of the CPE Program to purchase from his wife's online business. b. He did not disobey a senior officer nor violate a no-contact order. He did not maltreat or act inappropriately toward junior officers. He did not intentionally neglect or fail to perform his duties under the provisions of Army Regulation 600-8-24, chapter 4, paragraph 4-2(b)(7). Such misconduct referenced above was unprofessional, but did not constitute conduct unbecoming of an officer under the UCMJ or under the provisions of paragraph 4-2(b)(8) and did not constitute a pattern of misconduct. c. The findings did not warrant his separation. d. The Board voted to retain him in the Army with reassignment. 25. On 18 March 2016, he acknowledged receipt of a copy of the Officer BOI Report and Proceedings.? 26. On 8 April 2016, the applicant, through counsel, appealed to the DASEB for removal of the GOMOR from his OMPF. 27. On 11 April 2016, the applicant, through counsel, appealed to the Officer Special Review Board (OSRB) for removal of the DA Form 1059 for the period 9 June 2014 through 12 March 2015 from his OMPF. 28. On 4 August 2016, the DASEB denied the applicant's request for removal of the GOMOR from his OMPF. 29. On 29 August 2017, the DASEB denied the applicant's request for removal of the DA Form 1059 for the period 9 June 2014 through 12 March 2015 from his OMPF. 30. On 31 January 2019, the applicant retired for length of service. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The board found that the GOMOR, the IA’s filing directive of the GOMOR, and the AER were supported by the evidence provided to the Board. The Board found the following: 1. the GOMOR was not untrue or unjust. The Board Members found that the applicant’s behaviors detailed in the AR 15-6 investigation were evident of personal misconduct and that the BOI also found evidence of misconduct and moral or professional dereliction. 2. the AR 15-6 investigation findings as to personal misconduct weighed more heavily than those of the BOI. The AR 15-6 investigation made findings that the applicant committed acts of personal misconduct supported by the evidence. The BOI found that some, but not all, of the misconduct was supported by a preponderance of the evidence. BOIs are limited to making determinations on whether to retain or eliminate an officer. While the BOI in this case found that some of the alleged misconduct was not substantiated by a preponderance of the evidence, neither the imposing authority (IA) nor the Board is bound by these findings and such findings do not invalidate an appropriately prepared and filed GOMOR or unsubstantiate the underlying misconduct upon which it is based. The Board found the GOMOR was filed pursuant to an objective decision by the IA. 3. the Board noted that the BOI findings coincided with the AR 15-6 investigation findings that the applicant a. did solicit and/or pressure other Soldiers to purchase from his wife’s eBay business in violation of the joint Ethics Regulation b. did disrespect a superior commissioned officer 4. the GOMOR imposing authority (IA) had the authority to issue the GOMOR as an administrative measure to correct the applicant’s behavior that the IA deemed inappropriate. The IA also had the authority to revoke the GOMOR after considering the applicant’s rebuttal to the GOMOR or after considering the BOI’s findings and did not do so. 5. the Board found that removal or amendment of the AER is not warranted. The Board found the weight of the evidence does not reflect that the AER is materially incorrect, inaccurate, or unjust, with regards to the applicant's misconduct. The Board found the AER represented the considered opinions and objective judgment of the rating officials at the time of preparation. The applicant received the GOMOR for misconduct occurring during the period covered by the AER and signed his AER without contesting it or submitting matters in rebuttal at that time. The Board found that the administrative error of no "Referred" block check in item 9 of the AER was a typographical error and does not negate the AER and the factual depiction of the conditions it records at the time the applicant signed the AER. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): not applicable. REFERENCES: 1. Army Regulation 600-37 (Unfavorable Information) provides that an administrative memorandums 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 Resource Record that indicates substandard 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. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Army Military Human Resource Record, 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). This table also shows the DA Form 1059 is filed in the performance folder. 3. Army Regulation 623-3 prescribes policies and tasks for the Army's Evaluation Reporting System that includes reporting systems for officers and noncommissioned officers and academic performance and potential. a. Paragraph 3-27 (Referred DA Form 1059 and DA Form 1059-1) states the following reports will be referred to the rated Soldier or student by the reviewing official for acknowledgment and an opportunity to comment before being submitted to Headquarters, Department of the Army: * any report with a "NO" response * any report with an "Unsatisfactory" rating * any report with a "Marginally Achieved Course Standard" rating * any report with a "Failed to Achieve Course Standard" rating * any report with comments that in the opinion of the reviewing official are so derogatory the report may have an adverse impact on the student's career b. Paragraph 3-36 (Modifications to Previously Submitted Reports) states an evaluation report accepted by Headquarters, Department of the Army, and included in the official record of a rated Soldier is presumed to be administratively correct, have been prepared by the properly designated rating officials, and represent the considered opinions and objective judgment of rating officials at the time of preparation. Requests that an evaluation report in a Soldier's OMPF be altered, withdrawn, or replaced with another report will not be honored. 4. Army Regulation 600-8-24 provides policies and procedures governing the transfer and discharge of Army officer personnel. a. An officer is permitted to serve in the Army because of the special trust and confidence the President and the Nation have placed in his patriotism, valor, fidelity, and competence. An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times. However, an officer who will not or cannot maintain those standards will be separated. Elimination action may be or will be initiated for acts of personal misconduct, conduct unbecoming of an officer. b. Paragraph 4-6 provides guidance for BOI's and states the purpose of a BOI is to give the officer a fair and impartial hearing to determine if the officer will be retained in the Army. Through a formal administrative investigation conducted under Army Regulation 15-6 and this regulation, the BOI establishes and records the facts of the respondent's alleged misconduct, substandard performance of duty, or conduct incompatible with military service. Based upon the findings of fact established by its investigation and recorded in its report, the board then makes a recommendation for the officer's disposition consistent with this regulation. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170007793 4 1