ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 February 2019 DOCKET NUMBER: AR20180001000 APPLICANT REQUESTS: removal of the DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) Officer Evaluation Report) covering the period 1 May 2014 through 29 July 2014 from his Official Military Personnel File (OMPF). 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) * DA Forms 1059 (Service School Academic Evaluation Report), dated 26 October 2012 and 8 March 2013 * Memorandum, Headquarters 10th Sustainment Brigade, Bagram Airfield, Afghanistan, dated 26 July 2014, subject: Memorandum of Reprimand * DA Forms 67-10-1 for periods ending 29 July 2014, 25 January 2015, 25 January 2016, 16 October 2016, and 16 October 2017 * Email, Captain P____, Trial Counsel/Operational Law Attorney, dated 1 August 2014, subject: Redacted Investigation * Memorandum, Indiana Army National Guard (ARNG), Remington, IN, dated 5 September 2014, subject: Request a copy of Army Regulation 15-6 investigation regarding classified information spillage * Memorandum, Indiana ARNG, dated 10 September 2014, subject: Referred OER Comments (Applicant) * Email, Major A____, 10th Sustainment Brigade S-1, dated 28 August 2014, subject: (Applicant) OER Ready for Signature * Email, Lieutenant Colonel H____, dated 31 August 2014, (Applicant) OER Ready for Signature * Memorandum, Headquarters, Indiana ARNG, Indianapolis, IN, dated 12 September 2017, subject: Notification of Promotion Eligibility Status * DA Form 1559 (Inspector General Action Request), dated 16 October 2017 * Email, Master Sergeant L____, Assistant Inspector General Noncommissioned Officer, dated 14 November 2017, subject: Case Closure of Inspector General Case * DA Form 4097 (Officer Record Brief), dated 21 November 2017 * Memorandum, Headquarters, 38th Sustainment Brigade, Kokomo, IN, dated 21 November 2017, subject: (Applicant) Letter of Endorsement * Memorandum, 776th Brigade Engineer Battalion, Lawrence, IN, dated 25 November 2017, subject: (Applicant's) Achievement Since Mobilization Incident * Memorandum, Headquarters, 38th Infantry Division, Indiana ARNG, dated 26 November 2017, subject: (Applicant) Letter of Endorsement * Memorandum, 219th Engineer Brigade, Franklin, IN, dated 27 November 2017, subject: (Applicant) Letter of Endorsement * Memorandum, 776th Brigade Engineer Battalion, dated 14 December 2017, subject: Waiver Request for Army Board for Correction of Military Records (ABCMR) Appeal Greater than 3 Years * DA Forms 2823 (Sworn Statement), dated 21 November 2017 and 11 December 2017 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); nor within the time frame provided in Army Regulation 623-3 (Evaluation Reporting System); however, the Army Board for Correction of Military Records 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: * the referred OER has negatively impacted his career by resulting in a one-time Department of the Army Reserve Component Promotion Board non-selection * the OER was referred due to an incident that occurred toward the end of his mobilization for mishandling classified information * the investigation found he failed to properly supervise destruction of classified information * he was issued a local letter of reprimand * he was not provided per a copy of the investigation findings and recommendation Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) * he could not show enough burden of proof to justify submitting an appeal since he did not have a copy of the investigation * he did not file a Commander's Inquiry within 60 days because he was trying to obtain the a copy of the investigation * legal counsel was not able to obtain a copy of the investigation * his referred OER shows the senior rater commented he must complete the Captains Career Course – however, he completed the Captains Career Course * he was "top blocked" (Most Qualified) by his senior raters in three of his next four OERs since the referred OER * the referred OER became an injustice to his military career when the Department of the Army Reserve Component Promotion Board determined he should not be selected for promotion due to this referred OER * he turned down two unit vacancy promotions in order to continue to board for Title 32 ARNG Active Guard Reserve positions * he was "hired" as an ARNG Active Guard Reserve officer on 16 October 2016 * he was advised through administrative reviews that this referred OER would not be an issue for promotion 3. The applicant enlisted in the ARNG on 18 February 2004 for a period of 8 years. He was appointed as a Reserve commissioned officer in the rank/grade of second lieutenant/O-1 on 27 May 2006. He was promoted to captain/O-3 effective 26 October 2010. 4. He completed the Signal Captains Career Course, Reserve Component, on 8 March 2013. 5. He received an OER covering the period 15 September 2013 through 30 April 2014 while assigned as a company commander stationed at Camp Phoenix, Afghanistan. His rater rated him "Proficient" and entered positive performance comments. His senior rater rated him "Highly Qualified" and commented "Unlimited potential; promote to Major and send to resident CGSC [Command and General Staff College]." 6. On 29 May 2014, he was award the Bronze Star Medal for exceptionally meritorious service while serving as a company commander in support of Operation Enduring Freedom. 7. On 26 July 2014, he received a written memorandum of reprimand from his brigade commander for failing to properly secure or dispose of classified material or to follow clearing procedures prior to departing Camp Phoenix, Afghanistan. His brigade commander stated: * the applicant was negligent in failing to provide the leadership and supervision necessary to ensure the buildings and work areas occupied by his company were properly cleared * the applicant acted with reckless disregard for security in abandoning a number of unsecured Conex containers which contained a significant quantity of classified material * the applicant's reprehensible conduct jeopardized the security of the United States and his fellow service members * this is an administrative reprimand imposed under the provisions of Army Regulation 600-37 (Unfavorable Information) and not as punishment under the Uniform Code of Military Justice * he intended to file this reprimand in the applicant's local personnel file for a period not to exceed 3 years * the applicant would be provided a copy of the evidence which formed the basis for this reprimand * the applicant would immediately acknowledge receipt of this reprimand in writing * the applicant could forward any matters to consider extenuation, mitigation, or rebuttal within 7 calendar days 8. On or about 29 July 2014, the applicant departed Afghanistan. He was awarded the North Atlantic Treaty Organization Medal for service during the period 9 November 2013 through 29 July 2014. 9. On 1 August 2014 via email, the applicant requested a redacted copy of the investigation from the Trial Counsel/Operational Law Attorney. 10. On 1 August 2014 via email, the Trial Counsel/Operational Law Attorney notified the applicant that the entire investigation was classified Secret and advised him that he was welcome to come to the Brigade Judge Advocate General's office to review the investigation. The investigation could not be redacted or emailed due to classification level and security concerns. 11. On 1 August 2014, the applicant responded to the Trial Counsel/Operational Law Attorney via email and stated that wasn't the guidance provided. He stated the Trial Counsel/Operational Law Attorney originally stated the documentation could be emailed and would be done as soon as it was redacted. His unit left theater the following day based on that information. He asked if the documentation could be sent to his secure email account in the United States. 12. On 28 August 2014, the applicant received email notification stating his referred OER for the period 1 May 2014 through 29 July 2014 was ready for his signature. 13. On 5 September 2014, the applicant requested a copy of the Army Regulation 15-6 investigation regarding classified information spillage from the 10th Sustainment Brigade, Bagram, Afghanistan. The applicant stated without this information he would not be able to properly respond to the comments in his OER. 14. The applicant was released from active duty to the control of the ARNG on 8 September 2014. His DD Form 214 shows his net active service during this period as 11 months and 24 days with service in Afghanistan from 9 November 2013 through 3 August 2014. 15. On 10 September 2014, the applicant acknowledged receipt of the OER referral memorandum and submitted written comments, stating: * he has requested and continuing to request a copy of the Army Regulation 15-6 investigation, the findings and recommendation, showing where he failed to supervise * he has not been afforded his legal right to view the investigation which shows what exactly his wrongdoings were as a Commander and the evidence proving that his unit was the last to have the alleged documentation in their possession * there were multiple entities at Camp Phoenix that had access to the same Secret document * he does not feel the rating and the referred comments justify his performance as Commander given changes that occurred in the last 45 days * given the amount of time to descope all work areas, all billeting, turn in $15 million dollars of equipment, that he did the best that he could * it is reasonable to expect any other Commander to perform the same given the circumstances * he has a valid DA Form 1059 showing he successfully completed the Captain's Career Course 16. His OER covering the period 1 May 2014 through 29 July 2014 was signed by his rater on 28 August 2014, by his senior rater on 28 August 2014, and by himself on 12 September 2014. a. Part IId (Authentication) shows this is a referred report. b. Part IVb (Performance Evaluation – Professionalism, Competencies, and Attributes) shows he was rated "Capable" and his rater commented "he failed to provide adequate supervision for his unit to properly disposing unit classified materials which resulted in a letter of concern from his Brigade Commander." c. Part VI (Senior Rater) shows he was rated "Qualified" and the senior rater (same commander who issued the memorandum of reprimand) commented "failed to ensure the proper disposal of unit classified materials during the last phase of his unit redeployment. [Applicant] has the potential and ability to perform in staff positions at the battalion level. Promote with peers: must complete the Captain's Career Course." 17. There is no evidence of record showing the applicant appealed the referred OER within 3 years of the evaluation report through date. 18. On 12 September 2017 the applicant received notification of his non-selection from the Department of the Army Reserve Components Mandatory Promotion Selection Board. 19. The applicant's OERs subsequent to the referred OER show senior ratings as: * 30 July 2014 through 25 January 2015 – Highly Qualified * 26 January 2015 through 25 January 2016 – Most Qualified * 26 January 2016 through 16 October 2016 – Most Qualified * 17 October 2016 through 16 October 2017 – Most Qualified * 17 October 2017 through 16 October 2018 – Most Qualified 20. The applicant provided four letters of endorsement/character reference to attest to his professionalism, potential to command, leadership abilities, and descriptions of being an extraordinary officer. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The Board agreed the statements and supporting documents does not warrant removal of the OER from the 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. 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 15-6 (Procedures for Investigating Officers and Boards of Officers), in effect at the time established procedures for investigations and boards of officers not specifically authorized by any other directive. Paragraph 1-9 (Use of Results of Investigations in Adverse Administrative Actions) stated that when adverse administrative action is contemplated against an individual based on information obtained as a result of an investigation, the appropriated military authority must observe the following minimum safeguards before taking final action against the individual: * notify the person in writing of the proposed adverse action and provide a copy, if not previously provided, of that part of the findings and recommendations of the investigation and the supporting evidence on which the proposed adverse action is based * give the person a reasonable opportunity to reply in writing and to submit relevant rebuttal material * review and evaluate the person's response 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. Paragraph 3-6 provides that once a document is properly filed in the OMPF, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. 3. Appendix B (Documents Authorized for Filing in the Army Military Human Resource Record and/or interactive Personnel Electronic Records Management System) of Army Regulation 600-8-104 and the U.S. Army Human Resources Command website provide a listing of documents authorized for filing in interactive Personnel Electronic Records Management System. a. The instructions state to file letters of reprimand, censure, or admonition in the performance folder unless directed otherwise by the Department of the Army Suitability Evaluation Board. b. A DA Form 67-10-1 will be filed in the performance and service folders of the OMPF. 4. Army Regulation 600-37 (Unfavorable Information), in effect at the time, prescribed policies and procedures regarding unfavorable information considered for inclusion in official personnel files. a. Paragraph 3-4a(3) (Filing in the Military Personnel Records Jacket) stated a letter designated for filing in the Military Personnel Readiness Jacket only may be filed for a period not to exceed 3 years or until reassignment of the recipient to another general court-martial jurisdiction, whichever is sooner. b. Paragraph 3-4b (Filing in Official Military Personnel File) prescribed a letter, regardless of the issuing authority, may be filed in the OMPF only upon the order of a general officer senior to the recipient or by direction of an officer having general court- martial jurisdiction over the individual. 5. Army Regulation 623-3, in effect at the time, prescribed the policy and tasks for the Army's Evaluation Reporting System, including officer, noncommissioned officer, and academic evaluation reports focused on the assessment of performance and potential. a. Paragraph 4-7 (Policies) stated an evaluation report accepted for inclusion in the official record of a rated Soldier'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. b. Paragraph 4-8 (Timeliness) provided, because of evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous evaluation report be corrected as soon as possible. Substantive appeals will be submitted within 3 years of an evaluation report "THRU" date. Failure to submit an appeal within the time will require the appellant to submit an appeal to the ABCMR. c. Paragraph 4-11 (Burden of Proof and Type of Evidence) stated the burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant will 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. ABCMR Record of Proceedings (cont) AR20180001000 9 1