ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 October 2019 DOCKET NUMBER : AR20190002986 APPLICANT REQUESTS: * removal of the DA Form 2166- 8 (Officer Evaluation Report (OER)) covering the period 4 March 2012 through 8 June 2013 from his Army Military Human Resources Record (AMHRR) * removal of a General Officer Memorandum for Reprimand (GOMOR) dated 11 May 2013 from his AMHRR 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) * Supplemental Statements of (Applicant), and Associates, Attorneys at Law, dated 14 November 2018 and 12 December 2018 * Memorandum, Headquarters, 3rd Infantry Division, Kandahar Airfield, Afghanistan, dated 11 May 2013, subject: GOMOR * Memorandum, 29th Infantry Brigade Combat Team, Security Force Assistance Team 32, Kandahar Airfield, Afghanistan, dated 18 May 2013, subject: Matters in Response to the GOMOR * Memorandum, Headquarters, 3rd Infantry Division, Kandahar Airfield, Afghanistan, dated 25 May 2013, subject: Memorandum of Reprimand Filing Determination * DA Form 2166-8 covering the period 4 March 2012 through 8 June 2013 * Memorandum, 29th Infantry Brigade Combat Team, Kapolei, HI, dated 9 July 2014, subject: OER Referral * Memorandum, 29th Infantry Brigade Combat Team, Kapolei, HI, dated 6 August 2014, subject: OER Rebuttal * Memorandums, 29th Infantry Brigade Combat Team, Kapolei, HI, dated 21 August 2014 and 25 August 2014, subject: OER for (Applicant) * Whistleblower Reprisal Questionnaire, undated * Letter, Department of the Army Office of the Inspector General (DAIG), Washington, DC, dated 28 December 2016 * Memorandum, 322nd Civil Affairs Brigade, Honolulu, HI, dated 25 February 2017, subject: Request for GOMOR Removal * Statement, First Sergeant , dated 26 October 2017 * Record of Proceedings, Department of the Army Suitability Evaluation Board (DASEB), dated 13 March 2018 * Letter, Army Review Boards Agency, dated 26 March 2018 * Memorandum, Army Review Boards Agency, dated 26 March 2018, subject: Resolution of Unfavorable Information for (Applicant) Case Number AR20170008771 * Letter, DAIG, Washington, DC, dated 20 November 2017, with email attachments * Memorandum, U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 26 November 2018, subject: OER 20120304-20130608, (Applicant) FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, 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. Counsel for the applicant states: * an OER should be removed from a Soldier's record when it is erroneous, inaccurate, or unjust * the contested OER contains substantive errors in the form of retaliatory comments * the applicant received a GOMOR for "disrespecting a superior officer, conduct unbecoming of an officer, and disorderly conduct" * the GOMOR is relevant to the OER at issue * the applicant filed a DAIG complaint in April 2012 over concerns with strategic and tactical decisions being made by some of his superiors * all of the adverse actions the applicant's command took against him took place after he made protected communications to the command and the DAIG * the applicant was removed from operations after he raised the complaints * the GOMOR was written and filed after he raised his concerns through informal and formal protected communications * the GOMOR was a product of reprisal * the contested OER referenced the GOMOR * the DAIG investigation concluded the contested OER included reprisal against the applicant * the applicant requested removal of the GOMOR from his AMHRR * the DASEB granted relief to move the GOMOR to the restricted folder of the applicant's AMHRR * the applicant submitted a Freedom of Information Act request and has not received the requested DAIG investigation information * the DAIG findings should provide sufficient evidence to support removal of the contested OER 3. At the time the applicant received a GOMOR and the OER covering the period 4 March 2012 through 8 June 2013, he was serving in Afghanistan as the 29th Infantry Brigade Combat Team Fires Support Officer as a mobilized Army National Guard commissioned officer in the rank/grade of captain/O-3. 4. The applicant's records do not contain the DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) for the Army Regulation 15-6 (Procedures for Administrative Investigations and Board of Officers) investigation and the investigating officer's recommendation. 5. On 11 May 2013, the Commanding General, Headquarters, 3rd Infantry Division, Kandahar Airfield, Afghanistan, reprimanded the applicant in writing for disrespecting a superior officer, conduct unbecoming of an officer, and disorderly conduct. The commanding general states: a. An Army Regulation 15-6 investigation revealed that the applicant was standing outside his billets socializing, out of uniform and in civilian clothes. The applicant exchanged comments with his team leader, a lieutenant colonel, the comments quickly escalated to an argument. The applicant used profanity and disrespectful language and loudly and publicly questioned the team leader's leadership and abilities as a senior officer. Another senior officer could smell the odor of an alcoholic beverage emanating from the applicant's breath. The applicant's actions are completely unacceptable for a commissioned officer and will not be tolerated. b. He is extremely disappointed in the applicant's unprofessional conduct and poor judgement. The applicant's actions raise serious concerns about his ability to lead and fall well below the standards expected of a commissioned officer of the U.S. Army. c. This is an administrative action and not as punishment under the UMCJ. 6. The applicant responded to the GOMOR on 18 May 2013 and requested that the GOMOR be withdrawn; or alternatively, filed in his local file. He accepted responsibility for being out of uniform and temporarily losing his military bearing by arguing with his team leader. He understood arguing with a senior leader was an error in judgment, and will not happen again. The experience has taught him that he should be more tactful in bringing issues which concerns himself to his senior leadership. 7. On 25 May 2013, the Commanding General, Headquarters, 3rd Infantry Division, Kandahar Airfield, Afghanistan, directed filing the GOMOR in the applicant's Official Military Personnel File. 8. A review of the applicant's AMHRR in the interactive Personnel Electronic Records Management System shows the OER covering the period 4 March 2012 through 8 June 2013 is filed in the performance folder. a. Part II (Authentication) shows the rater signed the OER on 23 June 2014, the senior rated signed the OER on 8 July 2014, and the applicant did not sign the OER. b. Part II (d) (This is a referred report, do you wish to make comments?) shows the rater checked "Yes" and the applicant checked "Yes, comments are attached." c. Part IV (a) (Army Values) shows the rater checked "No" for "Integrity" and "Duty." d. Part V (Performance and Potential Evaluation) shows the rater checked "Unsatisfactory Performance, Do Not Promote;" and commented: "[Applicant has the potential to be a fine officer, however, during the course of this deployment he was found to be in violation of General Order 1 (Consumption of alcohol) and subsequently administered a General Officer Memorandum of Reprimand (GOMAR) [sic] that will be filed permanently. Therefore, it has been directed that [Applicant] is not eligible for favorable action nor does the aforementioned violation meet the standard of acceptable Officer conduct. Officer was unable to take the APFT [Army Physical Fitness Test] during this period due to deployment for combat/contingency operations." e. Part V(c) (Comment on Potential for Promotion) shows the rater commented: "Do not promote." f. Part VII (Senior Rater) shows the senior rated checked "Do Not Promote" and "Below Center of Mass Do Not Retain." g. Part VII (c) (Comments on Performance/Potential) shows the senior rater commented: "[Applicant] demonstrated a serious lack of integrity and poor judgement without consideration of results throughout this rating period. A 15-6 [Army Regulation 15-6] investigation was conducted finding [Applicant] in violation of General Order 1 consumption of alcohol and subsequent GOMAR [sic] which was placed in his permanent file. He disregarded the decisions of the chain of command and became a liability to the team. Additionally he provided sworn statements which accused the chain of command of wrong doing and were proven to be false by official administrative inquiry." h. Part VII(d) (List Three Future Assignments for Which This Officer is Best Suited) shows the senior rater commented: "Do no retain." 9. On 1 October 2014, DAIG Case was initiated into the allegation that the applicant was rendered an unfavorable OER in reprisal for a protected communication in violation of Department of Defense (DOD) Directive 7050.06 (Military Whistleblower Protection). 10. On 15 May 2015, DAIG Report Case determined the preponderance of evidence indicated the rater and senior rater of the applicant's contested OER acted appropriately and within their authority when the unfavorable OER was rendered. The DAIG concluded the allegation should be declined and the case dismissed with the determination as not substantiated. The Hawaii State IG forwarded the case through the National Guard Bureau IG and DAIG to the Department of Defense IG for final approval. 11. On 28 December 2016, the DAIG notified the applicant of the final response to his complaint. The DAIG stated the OER accurately reflected his performance, conduct, and behavior overall; they found the specific comment by his senior rater that he "provided sworn statements which accused the chain of command of wrong doing and were proven to be false by official administrative inquiry," was included in reprisal. The DAIG determined the senior rater included an unfavorable comment in the contested OER in reprisal for a protected communication in violation of DOD Directive 7050.06 was substantiated. 12. On 13 March 2018, the DASEB determined the applicant provided sufficient evidence to show the GOMOR had served its intended purpose and that it was in the best interest of the Army to transfer the GOMOR to the restricted folder of the applicant's AMHRR. The contested OER appeal required a separate application to the HRC Evaluation Appeals Branch. 13. On 14 November 2018, he submitted an appeal to HRC. HRC returned his appeal without action since his appeal was not received within 3 years of the through date of the contested OER. BOARD DISCUSSION: 1. The carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, the circumstances, contents, issuance and filing of a GOMOR, the adverse OER, the investigation by the IG and the review and conclusions of the DAIG Report and DoDIG final approval. The Board considered the review by the DASEB and the transfer of the GOMOR to the applicant’s AMHRR restricted folder. The Board found that the IG conclusions were sufficient to support amendment of the applicant’s OER; the Board found insufficient evidence to support removal of the applicant’s GOMOR. Based on a preponderance of evidence, the Board determined that a correction to the applicant’s record was appropriate. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by redacting the following language from the applicant’s DA Form 2166-8 (Officer Evaluation Report (OER)) covering the period 4 March 2012 through 8 June 2013, Part VII c. – “Additionally he provided sworn statements which accused the chain of command of" wrong doing and were proven to be false by official administrative inquiry.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to removal of the GOMOR or the contested OER. 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, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) establishes procedures for conducting preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives. Paragraph 5-2 states IOs may use whatever method they deem most efficient and effective for acquiring information. Although witnesses may be called to present formal testimony, information may also be obtained by personal interview, correspondence, telephone inquiry, or other informal means. 3. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. a. An administrative memorandum 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. 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 (Appeals). c. Paragraph 7-2 (Policies and Standards) provides that 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. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF. Such 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. 4. 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 (AMHRR). Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. 5. Army Regulation 623-3 (Evaluation Reporting System) 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. Chapter 4 (Evaluation Report Redress Program) stated the Evaluation Report Redress Program consists of several elements at various levels of command. 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. b. Paragraph 4-7 (Policies) states evaluation reports accepted for inclusion in the official record of a Soldier 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. An appeal will be supported by substantiated evidence. An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered. The determination regarding adequacy of evidence may be made by Headquarters, Department of the Army (HQDA), Evaluation Appeals Branch. Appeals based on administrative error only will be adjudicated by HQDA Evaluation Appeals Branch. Alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board. These are generally claims of an inaccurate or an unjust evaluation of performance or potential or claims of bias on the part of the rating officials. c. Paragraph 4-8 (Timeliness) states substantive appeals will be submitted within 3 years of an evaluation report "THRU" date. Failure to submit an appeal within this time would require the appellant to submit his or her appeal to the ABCMR. The Army Special Review Board will not accept appeals over 3 years old or appeals from Soldiers who are no longer serving on active duty or as part of the USAR or Army National Guard. d. Paragraph 4-10 (Priorities) states appeals are processed in the order of priority established by the Evaluation Appeals Branch. e Paragraph 4-11 (Burden of Proof and Type of Evidence) states to justify deletion or amendment of a report, the applicant must produce evidence that established clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was 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 applicant. 6. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides procedural guidance for completing and submitting evaluation reports and associated support forms to HQDA that are the basis for the Army's Evaluation Reporting System. 7. Title 10, U.S. Code, section 1034, as amended, prohibits interference with a military member's right to make protected communications to members of Congress; IGs; members of DOD audit, inspection, investigation or law enforcement organizations; and other persons or organizations (including the chain of command) designated by regulation or administrative procedures. A protected communication is any lawful communication to a Member of Congress or an IG, as well as any communication made to a person or organization designated under competent regulations to receive such communications, which a member of the Armed Services reasonably believes reports a violation of law or regulation (including sexual harassment, unlawful discrimination, mismanagement, a gross waste of funds or other resources, abuse of authority, or a substantial or specific danger to public health or safety). 8. DOD Directive 7050.60 updates the policy and responsibilities for military whistleblower protection under Title 10, U.S. Code, section 1034. It states it is DOD policy that members of the Armed Forces shall be free to make a protected communication and/or free from reprisal for making or preparing to make a protected communication. It further states that no person may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing to make a protected communication. ABCMR Record of Proceedings (cont) AR20190002986 8 1