IN THE CASE OF: 
BOARD DATE: 26 August 2022 
DOCKET NUMBER: AR20210015810 


APPLICANT REQUESTS: 

•removal of his DA Form 67-10-2 (Field Grade Plate Officer Evaluation Report(OER)) covering the period 26 March 2014 through 17 March 2016 from his ArmyMilitary Human Resource Record (AMHRR)

•in the alternative –



•redaction of all references to a referred report

•redaction of all references to an Army Regulation 15-6 (Procedures forAdministrative Investigations and Board of Officers) investigation

•redaction of all references to Article 15 proceedings



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record under the Provisionsof Title 10, U.S. Code, Section 1552)

•Memorandum ((Applicant) OER Appeal), 1 October 2021, with 11 enclosures –



•Enclosure 1 – DA Form 67-10-2 covering the period 26 March 2014 through17 March 2016

•Enclosure 2 – Army Regulation 623-3 (Evaluation Reporting System),paragraph 4-8c (Timeliness)

•Enclosure 3 – Army Regulation 623-3, paragraph 4-11 (Burden of Proof andType of Evidence)

•Enclosure 4 – DA Form 2627 (Record of Proceedings under Article 15,Uniform Code of Military Justice (UCMJ)), 26 January 2016

•Enclosure 5 – U.S. Army Human Resources Command (HRC) Memorandum(Initiation of Elimination), 14 July 2020

•Enclosure 6 – DA Form 1574 (Report of Proceedings by Board of Officers),22 December 2020

•Enclosure 7 – Self-authored Memorandum (Waiver Request for EvaluationAppeal (Applicant), Report Period Covered 26 March 2014 through 17 March2016), 18 August 2020•Enclosure 8 – Email Correspondence with HRC (Evaluation Appeal –(Applicant)), 20 August 2020

•Enclosure 9 – Self-authored Memorandum (Evaluation Report Appeal(Applicant), Report Period Covered 26 March 2014 through 17 March 2016),20 August 2020

•Enclosure 10 – Email Correspondence with HRC (Evaluation Report Appeal),15 September 2020

•Enclosure 11 – Counsel's Letter to the Board, 23 September 2021



FACTS: 

1.The applicant did not file within the 3-year time frame 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 theinterest of justice to excuse the applicant's failure to timely file.

2.In his memorandum ((Applicant) OER Appeal), 1 October 2021, he states:

a.On 26 January 2016, the Commanding General, Headquarters, 82d Airborne









Division, signed his DA Form 2627, purportedly a first reading for him. Nothing ever came of this nonjudicial punishment and there was never a second reading. b. HRC initiated elimination action against him for substantiated derogatory activity resulting in a referred OER and a DA Form 2627, 26 January 2011 (should read 2016), which were filed in his AMHRR, and for conduct unbecoming an officer. c. On 22 January 2020, a Board of Inquiry convened and made the following findings and recommendations: (1) The allegation of substantiated derogatory activity resulting in a referredOER: the notification of proposed separation is supported by a preponderance of the evidence. The applicant used poor judgement in his means to use online duty platforms. The Army Regulation 15-6 investigation substantiated his negative OER. (2) The allegation of conduct unbecoming an officer: the notification of proposed separation is not supported by a preponderance of evidence. There is no solid evidence that the applicant knew  was still married at the time of their physical encounter. (3) The allegation of adverse information filed in his AMHRR for acts of personal misconduct reflected in the general officer Article 15 proceedings, 26 January 2016, is not supported by a preponderance of the evidence. There is only evidence of the first reading of the DA Form 2627.d.On 18 August 2020, he attempted to appeal his OER by submitting a request toHRC. HRC responded on 20 August 2020 and he submitted an additional appeal. HRC again responded on 15 September 2020 and indicated he had to submit his appeal to the ABCMR. 

e.He retained a military attorney to assist him with his appeal. In his attorney's letterto the Board, he notes that if he had actually received nonjudicial punishment under the provisions of Article 15, UCMJ, the DA Form 2627 is required to be filed in his AMHRR. A review of his AMHRR will prove there was never a DA Form 2627 contained therein. 

f.The OER in question mentions that he received nonjudicial punishment(Article 15) three times. Simply redacting these comments, which are clearly untrue, renders the evaluation virtually empty. He therefore requests removal of the entire OER from his AMHRR. 

3.In his attorney's letter, 23 September 2021, the attorney states that a review of theapplicant's AMHRR reveals no DA Form 2627.

4.A review of the applicant's AMHRR reveals no evidence of a DA Form 2627,26 January 2016, or evidence of an Army Regulation 15-6 investigation.

5.The DA Form 2627 provided by that applicant, 26 January 2016, shows in:

a.Section 1, the Commanding General, Headquarters, 82d Airborne Division, is





considering whether the applicant should be punished under Article 15, UCMJ, for the following misconduct: (1) in that the applicant did commit adultery with , a married woman, not his wife, on or about 24 November 2015. Such conduct being unbecoming of an officer and a gentleman; (2) in that the applicant wrongfully had sexual intercourse with  on or about 24 November 2015, such conduct being to the prejudice of good order and discipline and of a nature to bring discredit upon the Armed Forces; and (3) in that the applicant created a user profile and intentionally sought out sexual opportunities with married women through websites like  and  between on or about 1 April 2015 and 31 November 2015, such conduct being to the prejudice of good order and discipline and of a nature to bring discredit upon the Armed Forces. 

b.The remainder of the form is incomplete. The applicant did not sign the form,there was no finding, no punishment was issued, and no directive for filing the DA Form 2627 in the applicant's AMHRR was noted. 

6.His DA Form 67-10-2 covering the period 26 March 2014 through 17 March 2016shows in:

a.Part Ii (Reason for Submission), Relief for Cause;

b.Part IId (This is a referred report; do you wish to make comments?), is marked asa referred report and the applicant marked "No" for comments; 

c.Part IIe1 (Rated Officer Signature), the applicant's signature;

d.Part IIf1 (Supplementary Review Required?), is marked "Yes"; and

e.Part IVd1 (Character), his rater commented, in part: "…he lost the trust andconfidence of the chain of command by not adhering to the Army Values. As a result of [Army Regulation] 15-6 investigation, the Brigade Commander relieved him of his duties. Subsequently, the Division Commander found him guilty of Article 134 [General Article] during a General Officer Article 15 proceeding." 

f.Part IVe (Overall Performance) his rater rated his over performance as"Unsatisfactory" and commented, in part, "…his personal conduct was unsatisfactory and documented in a [Army Regulation] 15-6 investigation. Subsequently, the Brigade Commander relieved him of his duties as the Brigade S1 and the Division Commander found him guilty of Article 134 during a General Officer Article 15 proceeding." 

g.Part VI (Senior Rater), his senior rater rated his potential compared with officerssenior rated in same grade as "Not Qualified" and commented: "[Applicant] is the #16 of 16 Majors I currently senior rate in the brigade. Confident, technically and tactically sound and a consummate team player. [Applicant] unfortunately used poor judgment and decision making which resulted him receiving a General Officer Article 15 and relief of his duty position during this rating period. Limited potential for future service. [Applicant] must develop professionally in order to serve in any future key staff position." 

7.The HRC memorandum (Initiation of Elimination), 14 July 2020, notified the applicantof his requirement to show cause for retention on active duty because of misconduct,moral or professional dereliction, and derogatory information filed in his AMHRR. Theaction was based on the following specific reasons for elimination:

a.Substantiated derogatory activity resulting in a referred OER for the period26 March 2014 through 17 March 2016 and receipt of nonjudicial punishment under the provisions of Article 15, 26 January 2011 (should read 2016), which were filed in his AMHRR; and 

b.conduct unbecoming an officer as indicated by the above referenced items.

8.The DA Form 1574 (Report of Proceedings by Board of Officers), 22 December2020, shows:

a.The board, having considered the evidence, found:

(1)the allegation of substantiated derogatory activity resulting in an OERcovering the period 26 March 2014 to 17 March 2016 in the notification of proposed separation was supported by a preponderance of evidence; 

(2)the allegation of conduct unbecoming an officer in the notification ofproposed separation was not supported by a preponderance of evidence; and 

(3)the allegation of adverse information filed in applicant's AMHRR for acts ofpersonal misconduct reflected in the general officer Article 15 proceedings, 26 January 2016, was not supported by a preponderance of the evidence. 

b.Based on the evidence provided, the board specifically found that there was onlyevidence of the first reading of the Article 15 proceedings. 

c.In view of the above findings, the board recommended the applicant's retention inthe U.S. Army. 

9.The email correspondence from HRC informed the applicant that once an evaluationis over 3 years old, it must be submitted directly to the ABCMR for review andadjudication.

10.Correspondence from the U.S. Army Criminal Investigation Division (CID) revealedno derogatory information related to the applicant's incomplete DA Form 2627 or of anArmy Regulation 15-6 investigation during his OER rating period.

11.The applicant was provided a copy of the correspondence from CID and given anopportunity to comment and/or submit a rebuttal. He responded by providing thedocuments regarding the information received from CID; however, the adverse actionwas not addressed in the applicant's contested OER.

BOARD DISCUSSION: 

After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was warranted. The applicant's contentions, his military records, and regulatory guidance were carefully considered. Based upon a preponderance of the evidence, the Board determined there is sufficient evidence that shows an injustice exists while the contested report remains in his OMPF, and that the contested OER should be removed from his OMPF and replaced with a statement of non-rated time. 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

:X :X :X GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the contested OER covering the period 26 March 2014 through 17 March 2016 from his OMPF an replacing it with a statement for non-rated time. 



Microsoft Office Signature Line...
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, U.S. Code, section 1552(b), provides that applications for correction ofmilitary records must be filed within 3 years after discovery of the alleged error orinjustice. This provision of law also allows the ABCMR to excuse an applicant's failure totimely file within the 3-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Army Regulation 15-185 (Army Board for Correction of Military Records) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy acting through the ABCMR. The ABCMR considers individual applications that areproperly brought before it. The ABCMR will decide cases on the evidence of record; it isnot an investigative body. The ABCMR begins its consideration of each case with thepresumption of administrative regularity. The applicant has the burden of proving anerror or injustice by a preponderance of evidence.

3.Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers)establishes procedures for conducting preliminary inquiries, administrativeinvestigations, and boards of officers when such procedures are not established byother regulations or directives. Paragraph 5-2 states investigating officers may usewhatever method they deem most efficient and effective for acquiring information.Although witnesses may be called to present formal testimony, information may also beobtained by personal interview, correspondence, telephone inquiry, or other informalmeans.

4.Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy forcompleting evaluation reports and associated support forms that are the basis for theArmy's Evaluation Reporting System.

a.Paragraph 3-20 (Unproven Derogatory Information) states any mention ofunproven derogatory information in an evaluation report can become an appealable matter if the derogatory information is shown to be unfounded. References will be made only to action or investigations that have been processed to completion, adjudicated, and had final action taken before submitting an evaluation report to Headquarters Department of the Army. If the rated Soldier is acquitted at a court-martial or found not guilty at a nonjudicial punishment proceeding under Article 15, UCMJ, comments about the underlying incident will not be included in the evaluation. 

b.Paragraph 3-21 (Prohibited Comments) states comments that are prohibited willnot be included in evaluation reports. When a record of nonjudicial punishment under Article 15, UCMJ, is filed in the restricted folder of the AMHRR or locally, rating officials may not comment on the fact that such a rated Soldier received nonjudicial punishment. This does not preclude mentioning the rated Soldier's underlying misconduct which served as the basis for the nonjudicial punishment. 

c.Paragraph 3-27 (Referred DA Form 67-10 Series) states OERs with the followingentries, to include the rater's performance evaluation of "Capable" where the required explanation has derogatory information or the senior rater potential evaluation of "Qualified" where the required explanation has derogatory information, is a referred or adverse report. Such OERs will be referred to the rated officer by the senior rater for acknowledgement and an opportunity to comment before being submitted to Headquarters, Department of the Army (HQDA). 

d.Paragraph 3-37 (Modifications to Previously Submitted Evaluations Reports)states an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. For evaluation reports that have been completed and filed in a Soldier's AMHRR, administrative and substantive appeals will be submitted within 3 years of an evaluation report "THRU" date. 

e.Paragraph 4-1 (Overview) states the Evaluation Report Redress Programconsists 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 correct them once they have occurred. 

f.Paragraph 4-4 (Purpose) states alleged errors, injustices, and illegalities in a ratedSoldier's evaluation report may be brought to the commander's or commandant's attention by the rated Soldier or anyone authorized access to the report. The primary purpose of a Commander's or Commandant's inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record. A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA. However, in these after-the-fact cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record. 

g.Paragraph 4-7 (Policies) states an evaluation report submitted and accepted forinclusion in the rated Soldier's AMHRR 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. 

 h.  Paragraph 4-8 (Timeliness) states a request for administrative appeal or correction, by either the rated Soldier or the rating chain, will submitted and received not later than 3 years after an evaluation report "THRU" date for an administrative error so significant as to affect not only personnel management decisions, but selection board proceedings and career decisions. Substantive appeals will be submitted and received no later than 3 years after an evaluation report "THRU" date. 
 
 i.  Paragraph 4-11 (Burden of Proof and Type of Evidence) states 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 will not be applied to the evaluation report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. No appeal may be filed solely based on the contention that the applicant was never counseled. 
 
5.  Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides procedural guidance for completing and submitting to HQDA evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. Table 2-8 (Authentication for the DA Form 67-10-2) states action is required if referral of the DA Form 67-10-2 is required. The senior rater will place an "X" in the appropriate box in Part IId of the DA Form 67-10-2 before he or she has signed and dated the DA Form 67-10-2. The DA Form 67-10-2 will then be provided to the rated officer for placement of an "X" in the appropriate box in Part IId, signature, and validation of administrative data ("Yes" if the rated officer will provide comments as an enclosure to the DA Form 67-10-2 or "No" if the rated officer will not provide comments). 
 
6.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the 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. 
 
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