ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 September 2019 DOCKET NUMBER: AR20180012458 APPLICANT REQUESTS: * removal of a DA Form 67-10-2 (Field Grade Plate Officer Evaluation Report (OER)), for the period from 10 January to 24 March 2015, and all allied documents, be removed from the performance and restricted sections his official military personnel file (OMPF) * removal of the decision made by the Officer Special Review Board (OSRB) from his OMPF * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant’s memorandum * OSRB appeal packet 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. His rater, senior rater (SR), and non-rating chain reviewers (commander’s inquiry investigations and supplementary reviewer) all failed to clearly provide the facts justifying his relief for cause in accordance with Army Regulation (AR) 623-3 (Evaluating Reporting System) and DA Pamphlet 623-3 (Evaluating Reporting System). By failing to establish clearly the factual reason for the relief for cause OER submitted and providing only vague reasons, his constitutional due process protections had been violated. b. Although discretion was given to commanders in determining whether a Soldier had the confidence of his leaders and peers to continue in their duty, such discretion cannot be used arbitrarily, based only on presumption, without the clear explanation of reasons based on substantiated facts. Unjustly, he cannot argue facts that had not been discussed, highlighted, or argued, and remain unknown. c. In light of the four reviewers, his rater, SR, and non-rating chain commander’s inquiry official and supplemental reviewers, in addition to the OSRB, to date, no person or record could explain the facts the reviewers were relying on that led to the relief for cause. That was an absolute miscarriage of justice that five independent reviewers had combed through his documents, by no party could independently explain what facts that led to the relief for cause. No party could say with confidence that the categorical findings of the rater, SR, supplementary reviewers, and civilian report relied on the same facts. 3. The applicant provides a copy of his OSRB appeal packet. 4. Review of the applicant’s service record shows: a. Having prior enlisted service, he was appointed in the U.S. Army Reserve, Aviation Branch, as a second lieutenant, on 20 May 2000. He entered active duty on 14 January 2001. He was promoted to major on 1 July 2010. b. His record contains the referred OER, a “Relief for Cause” report, covering the rating period from 10 January to 24 March 2015, for his duties as an Escort Team Chief for a 25 member DOD Joint Service and civilian arms control organization. The OER shows in: (1) Part IVe (Performance Evaluation – Professionalism, Competencies, and Attributes) – the rater placed an "X" in the "Unsatisfactory” block and entered the comments: During this rating period, [the applicant] was relieved of his duties as Escort Team Chief due to the circumstances stemming from his personal misconduct and the subsequent loss in confidence by his leadership chain. (2) Part VII (SR) – the SR rated the applicant as “Not Qualified” and entered the comments: [Applicant] refused to sign. [Applicant] was removed from his role as Escort Team Chief by him due to the leadership chain's loss of trust and confidence in his ability to perform his duties and safeguard information. Carefully reevaluate his viability for foreign assignments and loosely monitor his professional development before considering for promotion to LTC. (3) The report was signed by the rater on 19 December 2016 and the SR on 22 December 2016. c. His record also contains his response to this OER, dated 16 December 2016, wherein he stated he acknowledged receipt of the OER referred to him as a Relief for Cause. His rater was not physically present during that rating period. Therefore, he had no basis whatsoever or grounds to properly assess or examine his character, conduct, performance, or promotion potential during that rating period. The SR, long ago lost legitimate subjectivity for his performance and promote on potential and he is convinced the SR was engaging in a deliberate attempt to impermissibly harm his career. During that rating period, he committed no personal misconduct. He did nothing that could reasonably be substantiated to support the stated loss of confidence by his leadership chain. d. On 30 December 2016, the Army Senior Service Advisor, stated as a result of her review and in accordance with her role as the supplementary reviewer as described in AR 623-3, paragraph 3- 10, that the OER complied with the evaluation reporting process, policy guidance of this regulation and procedural guidance in DA Pam 623- 3. She recommend the OER be processed as written. e. On 12 June 2017, the applicant was reassigned. f. On 27 February 2018, the OSRB found the applicant had not provided sufficient evidence to show the OER was not processed in accordance with applicable laws and regulations. Further, he had not provided sufficient evidence to show the comments and the ratings on the contested report were in error or they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered. The OSRB determined the overall merits of the case did not warrant the requested relief. 6. By regulations: a. AR 623-3 (Evaluation Reporting System), in order to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. b. AR 600-8-104 (Army Military Human Resource Records Management), once a document is placed in the OMPF, it becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. c. AR 15-185 (ABCMR), 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that it could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also found the relief was not warranted. The applicant’s contentions were carefully considered. However, based upon the documentary evidence provided by the applicant and found within the military service record, the Board concluded that there was insufficient evidence to show that the derogatory information within the applicant’s service record is false. Additionally, it appears that the applicant was afforded all due process according to regulatory guidance in the generation and filing of the documents. Therefore, the Board concluded there was no evidence of an error or injustice which would warrant making a change to the applicant’s service record. 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. 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 (AR) 623-3 (Evaluation Reporting System), in effect at the time, prescribed the policies for completing evaluation reports that support the Evaluation Reporting System. It states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and 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 that establishes 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. The regulation stated in: a. Paragraph 1-9 – Army evaluation reports were assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer. Performance would be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, and counseling forms. Potential evaluations would be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades. b. Paragraph 3-34 – Any report with negative comments in Parts Vb, Vc, VI, or VIIc would be referred to the rated officer by the SR for acknowledgment and comment before it is sent to Headquarters, Department of the Army. c. Evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and 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 that establishes 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 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. a. Chapter 2 provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF. Documents authorized for filing in the OMPF are kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and corrections to other parts of the OMPF. It also serves to protect the interests of the Soldier and the Army. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by the Army Board for Correction of Military Records or other authorized agency. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180012458 5 1