ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 October 2019 DOCKET NUMBER: AR20170011362 APPLICANT REQUESTS: that the comments of the senior rater (SR) of the Officer Evaluation Report (OER) with thru date of 20120721 be changed to reflect true facts. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. While his unit was in a 2-week mission in Jordan, two enlisted Soldiers engaged in prohibited acts. Those two Soldiers later confessed to their wrong doing during the investigation and were held responsible for their acts. His senior rater (SR) insisted that he knew what happened when he didn't nor was part of anything those two Soldiers were doing or did. Furthermore, the SR accused him of convincing Soldiers to lie when he was not involved in the issue or its outcome. He was also accused with other warrant officers (WO) of convincing other Soldiers to return their end of tour awards but there was no proof of that. All of the Soldiers the SR was referring too were willing to write a sworn statement. At all cost, he wanted to make him responsible for what the Soldiers did. Such is the case that he was the only one who sat in a room with the presence of the brigade JAG with no specific reason, according to them, he was interviewed twice and said the same thing, not multiple times like the SR said. Everyone interviewed said what they knew and the involved Soldiers confessed to their wrong doing, none of them pointing to him about doing anything wrong or being involved in the situation. b. He basically felt threatened, by being told he would remain in Kuwait (at this point his unit was gone back to US) for unknown time pending court martial. All personnel interviewed were willing to provide statement saying that what his SR wrote was not true but at the moment it was not accepted. It was at this time, they gave him the article 15 with a letter of reprimand in lieu of the court martial. It was later revealed they wrongfully gave him the article 15 and it was removed from his performance record after a records check. SR put his opinion on the OER not the actual facts. c. As seen in his service record, it was the first time he was involved in anything that had to do with legal for the Army. After redeploying, he had long days and even longer nights just thinking about this. He continued to stay engaged in all the activities he does for the Army National Guard to just keep his mind focus on the present tasks and not have flashbacks on what he went through. He continued his aviation duties to include finishing warrant officer advance course, regained his instructor pilot duties, pilot in command duties, appointed as counterdrug officer in charge (OIC) for Puerto Rico Aviation, and performed as Primary Tactical Officer for WO Candidate School Program. Honestly, kept himself very busy to avoid having that situation define who he really was. He worked successfully on getting the letter of reprimand out of my performance fiche based on the same arguments. He did not track the time allotted to perform this appeal and is for this reason that he respectfully request this appeal to be consider. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Puerto Rico Army National Guard (PRARNG) on 15 March 1999. He served in Bosnia from 1 June 2002 to 7 April 2003. b. He was honorably discharged from the PRARNG on 4 October 2004 under the provisions of National Guard Regulation (NGR) 600-200 (Personnel – General - Enlisted Personnel Management), for appointment as a commissioned or warrant officer. c. He executed the oath of office on 5 October 2004, and was appointed a Warrant Officer One and as an aviation maintenance officer in the PRARNG. He served in Kuwait from 30 September 2006 to 15 September 2007. d. His OER with a through date of 20110721, which he received 5 months rated time, shows he served as the Aviation Standardization Officer and received a outstanding performance rating from his rater, and a Best Qualified (BQ) rating by his SR. e. His OER with a through date of 20120721, the OER in question, which he received 12 months rated time, shows he served as an instructor pilot, and received two “no” block checks for Army Values, and an unsatisfactory performance, do not promote rating from his rater. His intermediate rater stated, the applicant acted in a manner contrary to the Army Values when confronted with a moral dilemma. The SR rated the applicant below center of mass, do not retain, do not promote. He stated, the applicant does not possess the moral courage necessary to choose the hard right over the easy wrong. He had multiple opportunities to correct his lapse in judgement but chose to remain silent. His actions resulted in a AR 15-6 investigation that required over three weeks to complete. Had he simply identified the issue as a CCIR, the guilty Soldiers would have been identified immediately. Do to his failure as an officer, several junior Soldiers were placed in an unfamiliar situation and made improper decisions, based on his guidance. To date, he does not understand that he is responsible for the chain of events that took place over three weeks ago. He has made every effort to convince the members of his unit that he is the victim. During the investigation, he and his fellow warrant officers convinced the enlisted Soldiers in the company to refuse their end of tour awards. f. On 26 July 2012, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specification each of intent to deceive, wrongfully impeded an investigation, and making a false official statement and obstructed justice. g. On 26 July 2012, he received a punitive Memorandum of Reprimand. He was reprimanded for misconduct. His actions resulted in an adverse impact on the command and the good order and discipline within his unit. His actions have embarrassed and disappointed his chain of command. h. His OER with a through date of 20130721, which he received 12 months rated time, shows he served as an instructor pilot and received a satisfactory performance rating from his rater, and a fully qualified, center of mass rating from his SR. i. He was honorably released on 11 February 2018 from active duty and item 18 (Remarks) , state he was ordered to active duty in another status, under the provisions of Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), for completion of Required Active Service. 4. By regulation AR 623-3 (Evaluation Report System), paragraph 3-36 (Modifications to previously submitted evaluation reports), an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to represent the considered opinions and objective judgment of the rating officials at the time of preparation. 5. By regulation AR 623-3, for evaluation reports that have been completed and filed in a Soldier’s AMHRR, substantive appeals will be submitted within 3 years of an evaluation report “THRU” date. Administrative appeals will be considered regardless of the period of the evaluation report; decisions will be made based on the regulation in effect at the time evaluation reports were rendered. 6. By regulation AR 623-3, paragraph 4 states that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 3-37a and 4-7a will not be applied to the evaluation report under consideration. a. Action is warranted to correct a material error, inaccuracy, or injustice. b. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. c. For a claim of inaccuracy or injustice of substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources. Third party are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant’s performance as well as interactions with rating officials. d. To be acceptable, evidence will be material and relevant to the appellant’s claim. In this regard, note that support forms or academic counseling forms may be used to facilitate writing in evaluation report. However, these are not controlling documents in terms of what is entered on the evaluation report form. Therefore, no appeal may be filed solely because the information on a support form or associated counseling document was omitted from an evaluation, or because the comments of rating officials on the evaluation report are not identical to those in the applicable support form or counseling document. In addition, no appeal may be filed solely based on the contention that the appellant was never counseled. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. The applicant’s contentions were carefully considered. The Board agreed there was no clear evidence the comments are unjust. The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier. In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the OMPF. Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority. There does not appear to be any evidence the contested OER was unjust or untrue or inappropriately filed in the applicant's OMPF. 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. 12/4/2019 I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, 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 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 (AR) 623-3 (Evaluation Report System) paragraph 4 states that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 3-37a and 4-7a will not be applied to the evaluation report under consideration. a. Paragraph 3-36 (Modifications to previously submitted evaluation reports), an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to represent the considered opinions and objective judgment of the rating officials at the time of preparation. b. Action is warranted to correct a material error, inaccuracy, or injustice. c. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. d. For a claim of inaccuracy or injustice of substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources. Third party are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant’s performance as well as interactions with rating officials. e. To be acceptable, evidence will be material and relevant to the appellant’s claim. In this regard, note that support forms or academic counseling forms may be used to facilitate writing in evaluation report. However, these are not controlling documents in terms of what is entered on the evaluation report form. Therefore, no appeal may be filed solely because the information on a support form or associated counseling document was omitted from an evaluation, or because the comments of rating officials on the evaluation report are not identical to those in the applicable support form or counseling document. In addition, no appeal may be filed solely based on the contention that the appellant was never counseled. //NOTHING FOLLOWS//