ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 22 January 2019 DOCKET NUMBER: AR20180008491 APPLICANT REQUESTS: * Removal of DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) Officer Evaluation Report (OER)) for the rating period 13 January 2014 – 12 January 2015 from his Official Military Personnel File (OMPF) and it be considered non-rated time * Reinstatement for the Fiscal Year (FY) 2014 Army Medical Department (AMEDD) captain (CPT) promotion list and he be allowed to remain on Troop Program Unit (TPU) status * A personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Forms 67-9 (OER), dated 17 December 2011, 31 July 2012, 31 July 2013, and12 January 2014 * DA Form 1574 (Report of Proceedings by Investigating Officer (IO)/Board of Officers), dated 21 August 2014 * Memorandum, Subject: Filing Determination of Memorandum of Admonition – Government Travel Card (GTC) Misuse for the applicant, dated 12 December 2014 * Email correspondence for annual evaluation input, dated 20 January 2015 * Memorandum, Subject: Memorandum for Input for the applicant’s Rating Period 12 January 2014 – 11 January 2015, dated 20 January 2015 * Memorandum, Subject: Justification Letter for the applicant, dated 5 March 2015 * Email correspondence, dated 9 March 2015 * Memorandum for Record, Subject: letter of Input for the applicant, dated 20 March 2015 * Letter of Recommendation, dated 15 June 2015 * DA Forms 67-10-1, dated 12 January 2015 and 31 July 2015 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 essentially: * the OER received was baseless and contradicts the 4 stellar evaluations that proceed it * he requested a commander’s inquiry and appealed the referred OER to no avail * it is in his permanent record and he has been passed over twice for promotion * he appeals the OER dated 11 January 2014 through 12 January 2015 [sic]; the basis of the appeal is based on substantive inaccuracy and it be considered non- rated time * the OER was completed after an initial local investigation and a follow on investigation by Army Reserve Medical Command (ARMEDCOM) for GTC misuse * his GTC misuse was a self-corrected lapse of judgement * Major General (MG) K_ and ARMEDCOM recommended a local filing of his letter of reprimand * he feels the OER was the command’s form of retaliation * prior OER’s by the same rater and senior rater were stellar * the statement “applicant misuse of his GTC made him unable to perform several duties requiring trust and accountability” is not supported by regulatory guidance and he never stopped fulfilling the required tasks even after making the error with the GTC 3. A review of the applicant’s service record shows the following: * 21 May 2010 – appointed as a Reserve commissioned officer and executed an oath of office * 17 November 2011 – Orders Number B-11-107613 promoted the applicant to the rank/grade of first lieutenant (1LT)/O-2 effective 21 November 2011 * 2 July 2012 – ordered to active duty in the Active Guard/Reserve (AGR) for a period of 3 years with assignment to 7234th U.S. Army Medical Support Unit 4. Between 17 December 2011 and 12 January 2014, the applicant received a total of 4 OER’s in which his performance in summary: * Part V (Performance and Potential Evaluation) “Outstanding performance, must promote” * Part VII (Senior Rater) “Best Qualified” * Part VIIa (Potential Compared with Officers Senior Rated in Same Grade) “Above Center Mass/Center of Mass (x3)” 5. On 12 January 2015, he received an OER for the rating period 13 January 2014 – 12 January 2015. The report shows the following in: * Part II (Authentication), item d (This is a referred report, do you wish to make comments?) “Referred” and “Yes” * Part IV(c)1 (Character) misuse of his GTC made him unable to perform several duties requiring trust and accountability; actions of this type led to a poor role model for unit Soldiers and constant struggle to handle situations with honesty and integrity * Part IV(c)3 (Intellect) knows what it will take to accomplish the mission of the unit but finds it difficult to hold all Soldiers accountable when their military occupational specialty duties and tasks assigned falls short of what is expected, this precludes the unit from maintaining a constant state of readiness * Part IV(c)5 (Develops) operational effectiveness is at times challenged, fracturing teamwork and cohesion; he admits to his shortcomings as necessary and seeks self-improvement when he has no other options * Part VI(a) Potential Compared with Officers Senior Rated in Same Grade) “Qualified” * Part VI(c) (Comments on Potential) “Promote with peers and send to Captain's Career Course 6. His record is void of the Army Regulation 15-6 (Procedures for Investigating Officer and Boards of Officers) investigation providing details of the investigation into his misuse of his GTC. Likewise, it is void of the General Officer Memorandum of Reprimand and the filing determination. 7. On 9 November 2016, Memorandum, Subject: Promotion Review Board RP1604-04, FY14, CPT, Army Reserve AGR, Medical Service Corps, Army Promotion List, Promotion Selection Board, was published directing the removal of the applicant from the FY14 CPT promotion list under the provisions of Title 10, USC, section 14310, and Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 3-18. 8. On 31 July 2015, he was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement). 9. The applicant provides: * Memorandum, Subject: Filing Determination of Memorandum of Admonition – GTC Misuse, wherein the imposing officer directs the reprimand placed in his military personnel records jacket for a period of 3 years * DA Form 1574, showing the investigating officer recommended a letter of reprimand be issued to the applicant and filed in his local file, barred from receiving a GTC and performing the duties of a certifying official for 24 months, training all Soldiers on proper use of a GTC and a personal budget/finance class * Email correspondence wherein Colonel S_ F_ provides a memorandum to the applicant’s senior rater for input into the applicant’s OER for the rating period 12 January 2014 – 11 January 2015 and endorses the hard work he puts into facility management * Letter of recommendation authored by Mr. M_ G_ wherein he commends the applicant for facility management and maintaining the Young Hall facility in a constant state of readiness and attests to his dependability * Memorandum, authored by First Sergeant S_ M_ wherein she states in – pertinent part, the applicant had taken on many responsibilities above and beyond what his job title stipulated, he was responsible for a million dollar facility, platoon leader for over 20 Soldiers and did his job with little or no supervision * Memorandum, authored by Staff Sergeant P_ S_ that states in pertinent part, the applicant assisted in the success of the Soldier readiness processing/troop medical clinic mission during October 2013 to September 2014 by planning, executing and organizing all required tasks in mobilizing 101 Soldiers to Fort Dix 10. On 11 July 2018, an advisory opinion was obtained from the U.S. Army Human Resources Command (HRC). The Chief, Officer Promotions, Special Actions opined: a. Based on a review of their records and the information provided, they found the applicant’s request for reinstatement to the FY14 CPT, AMEDD, Medical Service (MS), AGR, Promotion Selection Board did not have merit. b. He was removed from the FY14 promotion selection list via a Promotion Review Board by the Secretary of the Army on 9 November 2016. He was also considered for promotion by the FY17 CPT, AMEDD, MS, Army Reserve Non-AGR promotion board; however, he was not selected. c. The exact reason(s) for his non-selection for promotion under the FY17 criteria are unknown because statutory requirements set forth in Title 10, USC, section 4104 prevent disclosure of board proceedings to anyone who was not a member of the presiding board. It can only be concluded that the promotion(s) board determined that his overall record when compared with the records of his contemporaries, did not reflect as high a potential as those selected. Any further comment(s), remark(s) or statement(s) in regards to his non-selection are purely speculative. 11. The advisory opinion was forwarded to the applicant to give him an opportunity to respond and/or submit a rebuttal. He did not respond. 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. Concerning the removal of the referred OER for the period ending 12 January 2015 from his Official Military Personnel File (OMPF), an OER is presumed to represent the considered opinions and objective judgment of the rating officials at the time of preparation. The applicant was the subject of investigation for GTC misuse and was issued a locally filed Memorandum of Admonition. The OER in question was processed and accepted for filing in the OMPF in accordance with applicable regulations. Army Regulation 15-185 (Army Board for Correction of Military Records) states that the ABCMR will begin its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proof to show the Board should not accept the presumption of administrative regularity in the construct and filing of an OER. The Board denies the applicant’s request to remove the OER in question from his Official Military Personnel File (OMPF) and that it be considered non-rated time. 3. The applicant was removed from the FY14 promotion selection list via a Promotion Review Board by the Secretary of the Army on 9 November 2016. He was also considered for promotion by the FY17 CPT, AMEDD, MS, Army Reserve Non-AGR promotion board and was not selected. The exact reasons for his non selection are not known, however there is insufficient evidence to demonstrate the boards made an error in this case. The applicant’s request for reinstatement to the Fiscal Year (FY) 2014 Army Medical Department (AMEDD) captain (CPT) promotion list and to be allowed to remain on Troop Program Unit (TPU) status is denied. 4. The Board further considered the request for a personal appearance before the Board and found the evidence of record and the independent evidence provided by the applicant to be sufficient to render a fair and equitable decision at this time. 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. 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 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. AR 623-3 (Evaluation Reporting System) prescribes the policy for completing the DA Form 67-9, and DA Form 67-10-1, that are the basis for the Army's Evaluation Reporting System. a. Paragraph 1-9 states, in relevant part, Army evaluation reports are independent assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army's Officer Corps or NCO Corps within the period covered by the report. Performance will be evaluated by observing actions, demonstrated behavior, and results from the point of view of the Army Values, the Army's leadership framework, and responsibilities identified on evaluation report forms and counseling forms. Potential evaluations will be performance-based assessments of rated officers' or NCOs' ability to perform in positions of greater responsibility and/or higher grades/ranks compared to others of the same rank. These assessments will apply to all officers and NCOs, regardless of their opportunity to be selected for higher positions or grades, and will ignore such factors as impending retirement or release from active duty; potential evaluations continually change and are ultimately reserved for Headquarters Department of the Army (HQDA). b. Paragraph 1-11 states when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander or commandant will conduct an inquiry into the matter. The commander's or Commandant's Inquiry (Cl) will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by HQDA, and the conduct of the rated Soldier and members of the rating chain. The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official. c. Part IV, block b (DA Form 67-10-1) will be an assessment of the rated officer's overall performance when compared with all other officers of the same rank the rater has previously rated or currently has in their population. d. Paragraph 3-33k states the rated Soldier will always be the last individual to sign the evaluation report. The rated Soldier's signature will verify the accuracy of the administrative data in Part I, including the accuracy of the name and SSN on the evaluation report, rank and date of rank, branch or military occupational specialty data, period covered and nonrated time; the rating officials in part II; Army physical fitness test and height and weight entries. This procedure ensures that the rated Soldier has seen the completed report. It also increases the administrative accuracy of the report and will normally preclude an appeal by the rated Soldier based on inaccurate administrative data. e. Paragraph 3-33e states CDRs should exercise due diligence in maintaining rating schemes and ensuring the rendering of reports that are due. As a result, requests for issuance of nonrated time statements should be minimized. Requests for the issuance of nonrated time statements will be submitted only for periods when an evaluation report should have been rendered but was not, and all efforts by the rated Soldier and his or her unit to obtain a report have been exhausted. Such requests will be reviewed on a case-by-case basis and may or may not be approved by Headquarters Department of the Army. e. Paragraph 4-1 states the Evaluation Report Redress Program consists of several elements at various command levels. The program is both preventive and corrective in that it is based upon principles structured to prevent, and provide a remedy for, alleged injustices or regulatory violations, as well as to correct them once they have occurred. f. Paragraph 4-2 states an OER may have administrative errors or may not accurately record the rated Soldier's potential or the manner in which he or she performed his or her duties. The Redress Program protects the Army's interests and ensures fairness to the evaluated officer. At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause. A commander's inquiry (Cl) and an evaluation report appeal are separate and distinct actions. Rated Soldiers may seek an initial means of redress through a Cl; however, a Cl is not a prerequisite for the submission of an appeal. g. Paragraph 4-11 states evaluation reports accepted for inclusion in the Soldier's official record are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant must produce evidence establishing clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or 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. The burden of proof rests with the appellant. 3. AR 135-155 (Promotion of Commissioned Officers and Warrant Officers other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the U.S. Army Reserve (USAR). Paragraph 3-18(10) states Commanders and the Commander (CDR), HRC, Office of Promotions (Reserve Component (RC) will continuously review promotion lists to ensure that no officer is promoted who has become mentally, physically, morally, or professionally disqualified after being selected. Commanders and CDR, HRC, Chief, Office of Promotions (RC) may recommend officers for removal for the following reasons: * a referred evaluation or academic report; evaluation and academic reports referred under AR 623 will be used as a basis for removal action only if forwarded to CDR, HRC, Office of Promotions (RC) under separate memorandum of recommendation * a memorandum of reprimand placed in the OMPF * any adverse documentation being placed in the OMPF 4. AR 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 (AMHRR). The military personnel records jacket, military personnel file, and career management information file are no longer authorized for use by any component. This does not eliminate the need for documents to be filed locally. Examples include, but are not limited to, local training records DA Form 705 (Army Physical Fitness Test Scorecard, weapons qualification record, and administrative documents, such as general counseling documents. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20180008491 5 1