IN THE CASE OF: BOARD DATE: 9 September 2022 DOCKET NUMBER: AR20210017428 APPLICANT REQUESTS: in effect, reconsideration of his previous request for: * removal of DA Form 67-8 (Officer Evaluation Report (OER)) ending 30 November 1995 from his Army Military Human Resources Record (AMHRR)) * removal of General Officer Memorandum of Reprimand (GOMOR) dated 7 January 1996 * permanent filing of the 1997 elimination board proceeding in his AMHRR * consideration for promotion to the rank of Major (MAJ)/O4 with back pay and allowances * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) online * DD Form 149 hardcopy * self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) service ending 20 December 1980 * 445th Civil Affairs (CA) Battalion (BN) (General Purpose) memorandum dated 15 June 1995, Subject: United Nations Mission in Haiti (UNMIH) Civil Military Operations Center (CMOC) Standard Operating Procedures (SOP) * CMOC UNMIH organization chart * DA Form 2823 (Sworn Statement) from MAJ * DA Form 67-8 ending 30 November 1995 * DA Form 2823 from Lieutenant Colonel (LTC) * Sworn statement from Captain (CPT) * DA From 4856 (General Counseling Form) for Lieutenant (LT) (the applicant) * Headquarters (HQs), Special Operations Task Force memorandum dated 4 December 1995, Subject: OER Referral 12 October through 30 November 1995 (the applicant) * HQs, Special Operations Task Force memorandum dated 4 December 1995, Subject: Acknowledgement of Relief for Cause OER * Character reference from Staff Sergeant (SSG) * Witness statement from MAJ * DA Form 1559 (Inspector General (IG) Action Request * HQs, Special Operations Task Force memorandum dated 17 December 1995, Subject: First LT (the applicant) * Stipulation of Testimony for a Memorandum for Record from CPT * HQs, Special Operations Task Force memorandum dated 19 December 1995, Subject: Supplementary OER Review 12 October through 30 November 1995, (the applicant) * HQs, Special Operations Task Force Haiti memorandum dated 19 December 1995, Subject: S3 After Action Report (AAR) * HQs, Special Operations Task Force memorandum dated 31 December 1995, Subject: Request for Commander's Inquiry for the period of 12 October through 30 November 1995, (the applicant) * HQs, U. S. Army CA and Psychological Operations Command (USACAPOC) memorandum dated 7 January 1996, Subject: Administrative Reprimand * DD Form 214 service ending 20 January 1996 * Endorsement dated 20 February 1996, Subject: Letter of Reprimand for (the applicant) * U.S. Army Special Operations Command (USASOC) Form 1001 (Summary Sheet) * USASOC memorandum dated 31 January 1997, Subject: Notification of Requirement to Show Cause for Retention * Endorsement dated 11 February 1997, Subject: Notification of Requirement to Show Cause for Retention * Counsel letter dated 13 March 1997 to USASOC * Character reference from LT * Character reference from MAJ * Stipulation of Testimony for LT * Counsel letter dated 9 June 1997 to USASOC * HQs, USACAPOC memorandum dated 10 June 1997, Subject: Involuntary Separation Board (the applicant) * Counsel letter dated 11 July 1997 to USACAPOC Staff Judge Advocate (SJA) * Character reference from Master Sergeant (MSG) * Stipulation of Testimony for LT * Stipulation of Testimony for MAJ * Stipulation of Testimony for MAJ * Stipulation of Testimony for Major General (MG) * Stipulation of Testimony for Sergeant First Class (SFC) * Stipulation of Testimony for * Stipulation of Testimony for SFC * Stipulation of Testimony for SFC * Stipulation of Testimony for Specialist (SPC) * Stipulation of Testimony for SSG * Stipulation of Testimony for SSG * HQs, 445th CA BN memorandum dated 12 January 1998, Subject: Evaluation Report Appeal 12 October through 30 November 1995, (the applicant) * HQs, USASOC memorandum dated 20 February 1998, Subject: Request for Redress Under Article 138, Uniform Code of Military Justice (UCMJ) * Elimination Board Script Verbatim Findings and Recommendations * HQs, USASOC memorandum dated 6 March 1998, Subject: Report of Proceedings in Lieu of Elimination (the applicant) * 364th CA Brigade (BDE) memorandum dated 22 March 1998, Subject: Chaplain visit by (the applicant) * Review Boards Agency letter dated 14 May 1998 to the applicant * U.S. Army Reserve (USAR) Personnel Command (ARPERSCOM) memorandum dated 8 October 1999, Subject: Promotion as a Reserve Commissioned Officer of the Army * ARPERSCOM memorandum dated 21 February 2000, Subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) * DA Form 67-9 (OER) ending 8 April 2001 * 1397th Transportation Terminal BDE to MG from (the applicant) * Board for Correction of Military Records letter dated 19 August 2003 to the applicant * Applicant letter dated 22 December 2003 to the Director, Army Board for Correction of Military Records (ABCMR) * HQs, USACAPOC Orders Number 04-035-00001 * U.S. Army Human Resources Command (HRC) memorandum dated 17 May 2004, Subject: Notification of Promotion Status * ABCMR letter dated 21 August 2005 to the applicant * Applicant letter dated 5 October 2005 to ABCMR * Memorandum dated 23 February 2006, Subject: Addendum to Appeal OERs 12 October through 30 November 1995 and 20 December 1993 through 19 December 1994 * Siskiyou County Sheriff's Department letter dated 21 October 2013 to (the applicant) * Counsel letter dated 1 December 2017 to * Counsel letter dated 24 May 2019 to * Letter dated 6 June 2019 to MG * E-mail from USACAPOC dated 15 August 2019 * Counsel letter dated 23 August 2019 to FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20060011992 on 30 January 2007. a. On 9 August 2005, ABCMR Docket Number AR20040009921, the Board denied relief for the applicant's request to remove a GOMOR, restoration to the active Reserve, and reconsideration for promotion to the rank of MAJ with entitlement to all back pay and allowances. The Board concluded the applicant failed to submit evidence there was an error or injustice in his record. The GOMOR was properly imposed as an administrative measure and filed into his AMHRR in accordance with the filing instructions of the imposing officer and applicable regulations. The Show-Cause board was not to establish guilt or innocence; however, the board did find he did disobey a lawful order from a superior and that was sufficient to warrant the GOMOR. b. On 30 January 2007, ABMCR Docket Number AR20060011992, the Board denied relief for the applicant's request for reconsideration of his earlier request to remove a GOMOR from his AMHRR and reconsideration for promotion to MAJ. As a new request, the applicant requested the findings of the 1997 separation board be included into his AMHRR. The Board found there was insufficient evidence to grant the applicant's request to include the 1997 separation board proceedings into his AMHRR since the applicant was retained. In regards, to the applicant's request to remove a GOMOR from his AMHRR and reconsideration for promotion to MAJ, the evidence did not demonstrate the existence of a probable error or injustice, therefore the merits were insufficient to amend the Boards decision in Docket Number AR20040009921 dated 9 August 2005. 2. The applicant states in effect, while he was deployed to Haiti, he received a Relief for Cause OER, which was a conspiracy against him, was in violation of the UCMJ as the raters were not in his rating chain. He also received a GOMOR and later went before an elimination board in 1997 for missing movement, displaying conduct unbecoming of an officer, and disobeying a direct order. The elimination board found he did not miss movement or displayed any conduct that was unbecoming of an officer but did disobey a lawful order and recommended that he be retained in the service. The incident which led to the aforementioned actions, LTC and MAJ demanded he turn over a military vehicle in his possession. When he requested a hand receipt for proper disposition of the vehicle, LTC and MAJ stormed off and then proceeded to file a complaint for insubordination and disobeying a direct order. They acted in violation of the rating chain and UCMJ, which caused MG to initiate the GOMOR. LTC and MAJ was not in the applicant's rating chain and had no authority to rate him. This entire situation has caused him to suffer mentally and physically, when he received the Relief for Cause OER, he considered falling from a Landing Craft Utility (LCU), but the glow of bioluminescence in the water had stopped him from completing this act. He later was married to a woman who brought a son to the family. He was the son he never had. They divorced after 3-year, he had run ins with law enforcement and experienced periods of homelessness, post-traumatic stress disorder, depression, despondency, withdrawals, and anxiety. He was also assaulted in his parking lot on 29 April 2021 and woke up in the trauma ward of San Jose hospital. He requests the Board to see the absurdity of the evidence used in the Relief for Cause OER, GOMOR, and elimination board and conclude it was all a conspiracy to destroy his career over a hand receipt for a vehicle. He requests the Relief for Cause OER and GOMOR be removed from his AMHRR, be promoted to the rank of MAJ with back pay and allowances, and permanent filing of the 1997 elimination board proceedings in his AMHRR. 3. A review of the applicant's service record shows: a. On 20 May 1989, with prior enlisted service in the USAR, the applicant was appointed as a Reserve commissioned officer and executed an oath of office in the rank/grade of second lieutenant (2LT)/O-1. b. On 3 August 1990, Orders Number C-08-022320, issued by the USAR Personnel Center, the applicant was assigned to the 445th CA BN, effective 30 July 1990. c. On 19 May 1992, the applicant was promoted to the rank/grade of first lieutenant (1LT)/O-2. d. DA Form 1059 (Service School Academic Evaluation Report) shows the applicant completed the CA Officer Advanced Course during the period of 23 August through 3 September 1993. e. OER for the period of 20 December 1992 through 19 December 1993 shows his rater rated his performance as usually exceeded requirements. The rater commented he made great gains in the development of his technical skills and he pursued his performance with a vengeance and a positive mental attitude for his fellow junior officers. The senior rater rated his potential for promotion as promote with contemporaries and was limitless. The senior rater commented because of his knowledge and experience in CA operations, he was selected as the Executive Officer of a CA team. f. OER for the period of 20 December 1993 through 19 December 1994 shows his rater rated his performance as usually exceeded requirements. The rater commented he sometimes had problems dealing with responsibility and disruptive issues. His knowledge and excellent communications skills were an asset to his team. His rater rated his promotion potential as do not promote. The senior rater commented although he had potential, he was not matured as expected and needed to learn not to be selective in which orders to follow. g. On 12 February 1995, the applicant was notified he was issued a referred OER for the period of 20 December 1993 through 19 December 1994 due to his promotion potential was do not promote. He was required to acknowledge receipt of the OER and he may provide comments if he desired. He acknowledged receipt of the OER. h. OER for the period of 20 December 1994 through 11 October 1995 shows his rater rated his performance as met requirements. The rater commented he was a good officer. He was a contributor to the success of several BN operations. He was a constant source of new and innovative ideas. His promotion potential was to promote with contemporaries. His senior rater commented he had continued to develop over the rating period. His key contribution was in the planning for the BN October field training exercise, with close supervision, he will continue to develop into one of the finest officers in the Army. i. OER for period of 12 October through 30 November 1995 shows the applicant was relieved for cause. He exhibited poor judgement by absenting himself from his appointed place of duty and failing to follow a lawful order. He should develop willingness to seek and accept responsibility of his actions. He should develop ability to follow through with orders and initiate proper action in the absence of orders. His performance was rated as often failed requirements. His rater commented he was relieved of his duties for failure to perform his duties in a professional manner, dereliction of duty, and disobedience of direct orders of a senior commissioned officer. He failed to return to his assigned duty station in a reasonable time frame, which adversely impacted the CA mission and left his noncommissioned officer without supervision or assistance. He made disparaging remarks about the BN commander and other unit officers to his immediate supervisor. Those statements questioned his fitness to fulfill his assigned duties. His promotion potential was rated as other, do not promote, discharge from the Army at earliest opportunity. His senior rater commented he should not be in the Army. He had shown a propensity to be less than candid about a variety of incidents, displayed poor judgement and made statements disloyal to the chain of command. j. On 4 December 1995, the applicant was notified he was issued a referred OER for the period of 12 October through 30 November 1995 due to relief for cause. He was required to acknowledge receipt of the OER and may provide comments if he desired. He acknowledged receipt of the OER and did not concur and would appeal the OER. k. On 19 December 1995, the applicant was notified by LTC an additional review of the OER was completed and it was complete and correct as written. l. On 1 March 1996, the applicant was notified he was considered for promotion to the next higher grade but was not recommended. This was his first passover for promotion. m. On 14 April 1996, the 4th endorsement to the GOMOR issued to the applicant for disobeying a direct order of a superior officer and engaged in misconduct unbecoming an officer was sustained and was to be filed in his permanent record. His misconduct included dereliction of duty and failure to obey a lawful order. n. OER for the period of 15 July 1996 through 28 May 1997 shows his rater rated his performance as usually exceeded requirement. His rater commented he performed satisfactorily while attached to the Public Administration team. He maintained a professional relationship with superiors and subordinates. His promotion potential was promotion with contemporaries. He needed more assignments at the company and detachment level to fulfill this potential. His senior rater commented he performed his duties and responsibilities in a satisfactory manner. o. On 7 May 1998, the applicant was notified he was considered for promotion to the next grade but was not recommended which resulted in a second non-selection. He would be discharged unless eligible for and requested transfer to the Retired Reserve. On 30 July 1998, he was notified a second time of his non-select for promotion. o. The applicant's service record was void of any evidence of his name change, going forward his record shows his name to be p. On 8 October 1999, the applicant was promoted to the rank/grade of CPT under the name on 20 November 1996 with a date of rank of 19 May 1996. q. OER for the period of 15 March 1999 through 14 March 2000 he was rated at the rank of 1LT, shows his rater rated his performance as outstanding performance, must promote. His rater commented he was recently promoted to CPT. He was an excellent officer who made great contributions to the unit. He ensured accountability for his platoon and developed a training program for his Soldiers. His senior rater rated his promotion potential as fully qualified. His senior rater commented he adapted to the Transportation Corps from CA. He played a key role in establishing communication with the U.S. Coast Guard. He was ready for promotion to a staff position so he could develop his transportation skills. r. OER for the period of 9 April 1999 through 8 April 2000, he was rated at the rank of 1LT, and his rater rated his performance as outstanding performance, must promote. His rater commented he was recently promoted to CPT. He was an excellent officer who made great contributions to the unit. He ensured accountability for his platoon and developed a training program for his Soldiers. His senior rater rated his promotion potential as fully qualified. His senior rater commented he adapted to the Transportation Corps from CA. He played a key role in establishing communication with the U.S. Coast Guard. He was ready for promotion to a staff position so he could develop his transportation skills. This record had been administratively corrected by Army Reserve Personnel Command (ARPERSCOM), Appeals Office to agree with the official record. s. OER for the period of 9 April 2000 through 8 April 2001, he was rated at the rank of CPT, shows his rater rated his performance as satisfactory performance, promote. His rater commented he was an intelligent, articulate officer, his military bearing and appearance were exceptional. He was not available to take the Army Physical Fitness Test during the rating period and was not available to meet the height/weight requirements. His senior rater rated his promotion potential as fully qualified. His senior rater commented he had great promise and give him challenging assignments to continue his development. Promote with peers. t. On 4 October 2002, Orders Number 02-277-00008, issued by HQs, 63rd Regional Support Command (RSC), the applicant was assigned to the 7th Psychological Operations Group, effective 4 October 2002. u. OER for the period of 4 October 2002 through 10 February 2003 shows his rater rated his performance as satisfactory performance, promote. His rater commented though he was new to the unit, he quickly integrated himself into the staff. He was willing to perform any task requested of him. If he continued his current path, he would be a strong addition to the unit. He shows potential to serve in staff positions at group and BDE levels. Promote when eligible. His senior rater rated his promotion potential as best qualified. His senior rater commented during a time of chaos in the unit due to mission requirement, he stepped up and helped where needed, often not in his assigned duties. He showed great promise as a staff officer at this level. v. On 28 May 2003, ARPERSCOM issued a non-rated statement for the period of 9 April 2002 through 3 October 2002 as the evaluation was not rendered. w. On 7 August 2003, the applicant was notified he was considered for promotion to the next grade but was not recommended. This was his second non-select for promotion and would be discharged unless eligible and requested transfer to the Retired Reserve. x. On 4 February 2004, Orders Number 04-035-00001, issued by HQs, USACAPOC, the applicant was assigned to the USAR Control Group (Retired Reserve), effective 4 February 2004. y. On 17 May 2004, the applicant was notified he was considered for promotion by the Army Special Selection Board (SSB) under 2002 criteria but was not recommended for promotion. The SSB did not constitute an additional failure of selection but was confirmation of the action of the regularly convened board. z. On 27 October 2004, the applicant was notified by the Department of the Army Suitability Evaluation Board deliberated on a petition to transfer one record of a GOMOR from the performance portion of the applicant's record. The DASEB denied the requested transfer the GOMOR dated 14 April 1996. aa. On 30 January 2007, the ABCMR denied the applicant's request for reconsideration of his earlier request to remove a GOMOR from his official record, promotion to MAJ and a new request to have the findings for the Army separation board of 1997 to be included in his official record. There was insufficient evidence that would warrant correcting his records to show he was promoted to MAJ, to include the separation board findings in his official record as he was retained, and no adverse action was taken. (1) His records show he received less than satisfactory OERs even before he received the GOMOR and the relief for cause OER. His OER for the period ending 19 December 1991 shows he received one "2" rating and his rater rated his performance as met requirements with the comment he needed to focus his attention and efforts more clearly when faced with routine duties. (2) His OER for period ending 19 December 1994 showed he received five "2" ratings, his rater rated his performance as usually exceeded requirements with comments he sometimes had problems dealing with responsibility and disruptive issues and indicated he should not be promoted. His senior rater commented he had potential, but he had not matured as expected and needed to learn not to be selective in which orders he would follow. (3) He was promoted to CPT through a Board action in 1999, after he received the GOMOR and relief for cause OER; however, the applicant and nine others considered on the same board appear to have been recommended for promotion merely because they met the qualitative requirements. The qualitative requirements were not considered as the records of the 10 were not given even a cursory review in the Board proceedings. (4) The Army separation board findings showed his misconduct included dereliction of duty and failure to obey a lawful order from a superior, though it did not find he failed to appear at his place of duty or that he missed movement. bb. On 28 July 2022, Orders Number C07-296126, issued by HRC, the applicant was placed on the retired list in the rank of CPT, effective 12 March 2021. 4. The applicant provides: a. 445th CA BN UNMIH CMOC SOP dated 15 June 1995, states the CMOC Director reports to U-5 and is subordinate to him. The United Nations (UN) Multinational Force U-5 is responsible for staff planning and staff supervision of all CA operations in the Haiti Area of Operations. The CMOC provides staff support and CA products to the U-5. The CMOC organization will contain the Director and the Operations Noncommissioned Officer. The HQs provides direct supervision over all CMOC operations. The current operations cell, plans cell, and Humanitarian Assistance Coordination Center report to the director. All uncommitted BN elements are attached to the CMOC. LTC was the CMOC Director. The applicant highlights under phase II I employment "the CMOC will monitor the employment and condition of all CA assets in the operational area, insuring their effective employment and conservation." b. DA Form 2823 dated 29 November 1995 authored by MAJ stated on 19 November 1995, he was informed by LT Service Detachment Commander that on 18 November 1995, LT (the applicant), CA Direct Support Team leader, was relieved for cause. The applicant was in possession of a military vehicle which was to be transported to Magasin via an LCU. LT was told by CPT the commander at Magasin to coordinate the transport. The applicant refused to relinquish said vehicle to LT . MAJ contacted the applicant via telephone and directed him to turn over the vehicle to CPT who was his replacement upon her arrival. The applicant seemed reluctant to follow the directive and was concerned about hand receipt of the vehicle. MAJ told him that CPT could sign for the vehicle via a hand receipt. It was reiterated the vehicle would be turned over to CPT and placed on the LCU for transport to Magasin. On 20 November 1995, CPT contacted MAJ to inform him that the applicant refused to give her the keys to the vehicle. CPT also stated the applicant disobeyed the direct order because he was informed by the 445th CA BN supply sergeant, SPC the vehicle was a CMOC asset and should not be taken to Magasin. MAJ contacted CPT who advised the vehicle was signed for by the executive officer, CPT and it was to be transported to Magasin and was a CA asset. CPT expected the vehicle to be transported to Magasin on 16 November' however, the applicant missed the LCU departure. c. DA Form 2823 dated 30 November 1995 authored by LTC stated on 20 November 1995, he was contacted by MAJ who stated the applicant had disobeyed a direct order and was uncooperative. He refused to turn over his vehicle to CPT after being ordered to do so. MAJ and LTC found the applicant in building 47, he was told by LTC to obey the orders of all senior officers and to turn over the keys to the vehicle he had been driving. The applicant gave him the key, which confirmed he had not turned them over to CPT as directed by MAJ d. Sworn statement dated 30 November 1995 authored by CPT stated she arrived on 19 November 1995 and was told by CPT to get the vehicle keys from LT for the vehicle that the applicant was driving. When CPT spoke with LT she was told that the applicant would not give the key to LT. On 20 November 1995, CPT walked over to the CMOC Rear, where the applicant was working. She asked him for the keys, he continued to work and stated that she needed to speak with SPC about it. SPC then entered the room, CPT inquired about the vehicle. SPC began to explain the situation about the vehicle while the applicant inserted comments, that the vehicle belonged to the CMOC and was not an asset of the Operational Detachment A (ODA) team. SPC he signed the vehicle over to CPT to hand receipt, it to the applicant. The applicant stated he felt it was a ploy by the ODA team to obtain another vehicle, but it was a CA vehicle for his to use as he chose to. SPC he would call MAJ to discuss the vehicle and when he attempted, he was unable to speak with him, but left a message for him to call back. After the applicant and SPC left the room, CPT waited for another half hour, she then called MAJ to see who was to be in control of the vehicle. She also explained what had transpired regarding the vehicle and that the applicant did not provide her with the keys. MAJ stated he had ordered the applicant to relinquish the key to her. MAJ then stated he would call MAJ to discuss the situation. e. DA Form 4856 dated 1 December 1995, from MAJ to the applicant stated on 30 November 1995 at approximately 2130 hours the applicant was instructed to complete a memorandum describing why he failed to report to his assigned duty location. The memorandum was presented as directed; however, he failed to explain his statement of 30 November 1995 wherein he stated he was ordered by Colonel (COL) to report to Fort Lamentin. But he told MAJ that LT told him to proceed to Fort Lamentin, but he further advised COL did not give him the order to report. When the applicant was pressed on the conflicting statements, he stated he might have made a mistake. He later stated he did not think he made the statement about COL and submitted a revised memorandum. The applicant was being counseled for making a false statement, which was made at least twice. This was contrary to the leadership traits of judgement and integrity. However, to his credit, he later withdrew the statement. False or misleading statements to a senior officer could not be tolerated. The order from LT did not relieve him of the responsibility to report to the CMOC, his appointed place of duty. The applicant refused to sign the DA Form 4856, but stated his memorandum explained his position. f. HQs, Special Operations Task Force memorandum dated 4 December 1995, informed the applicant, OER 12 October through 30 November 1995 was referred due to a Relief for Cause. He must acknowledge receipt of the OER and he may provide comments if he desired within 5-days. Amy comments must be factual, concise, and limited to mattered directly related to the evaluation. g. On 4 December 1995, the applicant acknowledged receipt of the Relief for Cause OER for the period of 12 October through 30 November 1995, which he did not concur and would be appealing the evaluation. h. Memorandum for Record dated 9 December 1995 from SSG stated upon the arrival of the applicant and SSG he was able to relinquish many responsibilities to them. The applicant showed he had an exceptional grasp of his CA responsibilities as well as the desire and ability to conduct the tasks associated with his position. His effectiveness was noticed by other members of the team. The applicant told him he was going to put him in for an award. i. Memorandum for Record dated 9 December 1995 from MAJ stated on 16 November 1995 at approximately 1230 hours the applicant contacted him stating he wanted to start a medical/civil affairs project for the people on the island. He inquired if MAJ had any personnel who would be willing to travel around the island to conduct preventive medicine classes for the island's medical personnel and local volunteers. He also wanted to introduce him to other people who would be involved in the project. The applicant introduced him to MAJ who agreed the project would be a worthy project. The applicant asked him to write the memorandum for record to verify his whereabouts and duties during this period. j. DA Form 1559-R dated 13 December 1995, the applicant contacted the Inspector General stating that (date not legible) November 1995, LTC approached him in the 445th dayroom and informed him that he was considering a relief for cause OER or other UCMJ action against him. On 16 November 1995, LTC relieved him of his duty position as the Direct Support Team Chief on the island of La Gonave. He was not informed as to the reason for the relief. He later found out the relief was based on third party hearsay between the ODA team chief and MAJ of the 445th CA BN. MAJ wrote a memorandum for record, which LTC used to justify his action. The memorandum for record was not accurate, it contained several comments that were not related to his service in Haiti. Since 17 November 1995, he was waiting on the administrative process without the benefit of knowing why it was happening. He felt he did nothing wrong during the course of his duties to be treated in such fashion. He wanted to file a formal complaint for unfair treatment based on incorrect information and third party hearsay. He believed the actions were to damage his career and reputation as an effective CA officer. k. Memorandum for Record dated 17 December 1995 from CPT stated on 12 November 1995, he was assigned as the Special Operations Task Force S5 in Haiti where he met the applicant. At which time, the applicant explained he missed the LCU to Magasin because of problems coordinating medical supplies. He told the applicant it was a minor problem, which he would help him resolve. The following day, he found out the applicant had been relieved by the CMOC without coordination with CPT section nor the knowledge of the task force. He also learned the applicant was moved three times in 4-weeks to different tactical special forces units. There was no evidence of misconduct, no counseling to justify the moves. It was found the CMOC was acting independently of the task force, the CMOC reasoned that General had granted the director LTC BN commander authority. The CMOC did not work out any details of its relationship with the task force and made numerous decisions without advising the task forces. During the controversy, the task force moved the applicant to the task force HQs at Fort Lamentin. During the applicant's time at the fort, he found him to be friendly and easy to talk with, hard working and energetic. Though he had concerns about his future, he did not allow it to interfere with his duties. He did not present any abnormal personality traits and his interactions were superb. The task force was not informed of any problems with the applicant, nor was it afforded the opportunity to correct such problems or to determine the nature of the problems. Therefore, the CMOC presented the appearance of vengeance against him. If the CMOC allowed him to work at one unit for any length of time, perhaps he would not have later questioned any orders. l. It was stipulated by counsel and the applicant that CPT would testify to what he observed as the task force S5 in Haiti as written in the memorandum for record. m. On 19 December 1995, the applicant was notified by LTC he reviewed the OER for the period of 12 October through 30 November 1995 and found it to be complete and correct as written and required no further comment. n. HQs, Special Operations Task Force Haiti memorandum dated 19 December 1995, Subject: S3 AAR, stated in pertinent part, the CMOC was not under the task force control and were not co-located with its HQs. The command and support relationships with all elements was debated throughout the operation. The teams were given conflicting guidance as to whom to report to and the Soldiers were caught in the middle. The CMOC would move teams without notification to the task force. It was recommended for future operations, special operation forces in theater be under a single task force commander and to co-locate all elements of the operation. o. On 31 December 1995, the applicant requested the deputy commanding general of the USASOC to conduct a commander's inquiry for his evaluation report for the period of 12 October through 30 November 1995 due to administrative and substantive procedural errors in the evaluation process. p. On 7 January 1996, the applicant was reprimanded by the USACAPOC commander, for his misconduct, dereliction of duty, and failure to obey a lawful order of a superior. He determined COL allegations were substantiated. To openly defy the orders of a brigade level commander was extremely serious, his conduct negatively reflected on his professionalism and mature judgement he should possess to serve as a commissioned officer. He was appalled an officer would be involved in misconduct normally attributed to younger Soldiers. The conduct would not be tolerated. He lost confidence in the applicant's ability to discharge his official duties and responsibilities. His misconduct casted doubt in his ability to further serve in the command. q. DD Form 214 showing the applicant was ordered to active duty on 12 October 1995 in support of Operation Uphold/Maintain Democracy in Haiti. He was honorably released from active duty on 20 January 1996. It also shows he completed 3- months and 9-days of active service with service in Haiti during the period of 19 October through 20 December 1996. r. First endorsement dated 20 February 1996 from LTC Staff Judge Advocate (SJA) to memorandum, Subject: Letter of Reprimand for the applicant stated in response to his correspondence; MG would be the final decision maker on the interpretation of MAJ and LTC statements. The applicant's request for additional time to respond was denied as he did not state any specific or substantive reason why he could not submit his rebuttal in the timeframe provided. The action requested was not malicious or frivolous. The applicant's interpretation of military law and his comments about LTC action were in violation of the eighth and fourteenth amendments but had been received and noted. The applicant's impression of the lack of urgency on the part of MG or the SJA, suggests he believed he dictates the agenda and schedules of senior officers. It was suggested he exercise his right to respond substantively and to save his immaturity for situations where he could not hurt himself by such exhibition. s. USASOC Form 1001 dated 24 January 1997, stated the purpose for a decision to notify the applicant of the intent to involuntarily separate him for acts of personal misconduct, intentional neglect, moral, and professional dereliction, and conduct unbecoming of an officer. The following was the background for the request: * 18 November 1995 – he was relieved of his duties while in Haiti for failure to obey two direct orders from his superior, MAJ relief for cause OER was completed on 30 November 1995 * 15 December 1995 – COL requested a GOMOR * 7 January 1996 – MG issued the GOMOR and the applicant acknowledged receipt on 26 February 1996 * 12 March 1996 – the applicant responded to the GOMOR and on 14 April 1996 MG filed the GOMOR permanently in his AMHRR * 2 November 1996 – COL recommended the initiation of involuntary separation and MG concurred * The applicant previously received a letter of reprimand for failure to obey a lawful order t. HQs, USASOC memorandum dated 31 January 1997, Subject: Notification of Requirement to Show Cause for Retention, the applicant was notified of the initiation of separation action under provision of Army Regulation (AR) 135-175 (Separation of Officers), paragraph 2-12f, i, m, o for: * Acts of personal misconduct * Intentional neglect and failure to perform assigned duties * Special derogatory evaluation report, relief for cause * Conduct unbecoming an officer * Moral and professional dereliction He could elect to submit a resignation in lieu of involuntary separation, transfer to the Retired Reserve if eligible, or have case reviewed by a board of officers. He must respond within 15-days of receipt of the notification indicating his selection of options. If he failed to respond in the 15-days the board of officers would automatically review his case. u. On 11 February 1997, the applicant acknowledged receipt of notification of show cause for retention and he requested a board of officers review his case and the appointment of counsel for representation. v. On 13 March 1997, the applicant's civilian counsel requested the board be convened on the west coast, preferably in the bay area as the applicant and many of the witnesses reside on the west coast. w. Character reference from LT dated 29 April 1997, stated he served with the applicant since 1990 and he observed him to be a responsible, effective officer who understood CA and exceeded the requirements. He participated in many exercises without incident. He should be advanced to the next grade in his military career. Upon review of the OER from CPT and MAJ he felt the altered version of the OER with remarks of "Do not promote" changed the composition of the report and did not accurately reflect the applicant's potential, character nor his quality of service. x. Memorandum of support from MAJ for OER appeal for period of 20 December 1993 through 19 December 1994 for the applicant stated he served with him from 1992 through 1994, he was a very effective officer who was committed to the CA Corps, his unit, and fellow Soldiers. He followed through on assigned tasks, took the initiative to solve problems, and kept him informed. His promotion to CPT and continued service would be a great credit to the command and the CA community. y. Stipulation of testimony from LT that he would testify to: * He was in in the 445th CA BN for approximately 7-years, the applicant was in the unit for approximately 5-years * There were very few minority officers in the unit, he believed the applicant was singled out, the applicant has a reputation of a know it all and could not be trusted, not a fitting leader and lives an objectionable lifestyle * He witnessed efforts to derail the applicant, in Haiti, LTC moved him several times in a month without coordination with the special forces units involved, the applicant was not issued equipment for the mission * His belief was the command was unfair to the applicant and did not want him to succeed * MAJ worked on the task force and was not in a position to give an order to the applicant, he was not in his chain of command z. Letter from counsel dated 9 Jun 1997 addressed to General stated he was retained civil counsel for the applicant who was also represented by military counsel CPT. Counsel received notification dated 9 June 1997, the board would convene on 11 June 1997 at Fort Bragg, NC. The action of the SJA effectively made it impossible for the applicant to present his case; when no one knew when or where the board was to convene. Due to General subordinates refusal to provide the specifications, it was anticipated it to be necessary for the applicant to request the presence of approximately 15 to 20 witnesses and just impossible to make arrangements for their presence on such short notice. Therefore, counsel was requesting a delay in the board of approximately 30-days for a specific date. aa. HQs, USACAPOC memorandum dated 10 June 1997, Subject: Involuntary Separation Board (the applicant) stated co-counsel, CPT was granted a continuance of the board until 30 June 1997 by COL. Any further requests for continuances needed to be addresses to COL. bb. Letter from counsel dated 11 July 1997, wherein the applicant presented a list of individuals to be present at the retention board hearing. cc. Memorandum from MSG dated 27 July 1997, Subject: OER Appeal for the applicant for period 20 December 1993 through 19 December 1994 stated, she had known the applicant since 1993. She observed him to be an effective, responsible, mature, and intelligent leader. After review of the OER, she did not see where he was not responsible and mature, nor did she see any tangible reason why he should not be advanced to the next grade. She observed him to be an effective leader who responded well to both officer and enlisted Soldiers. He volunteered many missions and completed numerous military and civilian educational requirements. dd. Stipulation of testimony from LT if called as a witness he would testify to: * He was the transportation officer in Haiti, part of his responsibility was to oversee the issuance of vehicles, coordination transportation of personnel and materials * He issued the applicant a vehicle for his use on 11 November 1997, which he was required to sign a hand receipt, he used the vehicle to obtain school supplies from private sources due to his position as an ODA team member * The vehicle assigned to the applicant was a CMOC asset and him and CPT were assigned separate vehicles * On 15 November 1995, the applicant told LT if he obtained supplies, he would return to La Goave when scheduled, but if not, he would seek alternative transportation as he did not want to abandon his efforts obtaining supplies * LT was aware there was a good chance the applicant would not be on the transport on 16 November 1995, so he was not surprised he was not there, the applicant did not miss movement due to carelessness or neglect * On 28 October 1995, LT was informed the applicant was ordered to report to the task force HQs as soon as possible, he informed the applicant and transport was arranged on the 29th ee. Stipulation of testimony from MAJ if called as a witness he would testify to: * November 1995, MAJ was the Director of Humanitarian Assistance Control Center in Haiti * 16 November 1995, it was attempted to obtain the school supplies to no avail, the applicant accompanied him to obtain school supplies donated by non- governmental organizations, the applicant took the initiative to retrieve supplies for his ODA team located at La Goave * Ayiti Rabet warehouse was closed and would not reopen until 20 November 1995, they returned to the UN HQs ff. Stipulation of testimony from MAJ if called as a witness he would testify to: * October/November 1995, MAJ was the operation officer for COL at the task force HQs in Haiti * Fort Lamantin was located 12 miles from the CMOC * On or about 28 November 1995 he ordered the applicant to report to the task force HQs, which was passed down to him working at the CMOC; he reported the next morning when transportation was available * MAJ made it clear to responsible officers at CMOC the applicant was following his order to report to the task force HQs when he found out the applicant was accused of abandoning his post and failure to report to work * After arrival MAJ assigned the applicant to work with CPT on the S4 staff gg. Stipulation of testimony from MG if called as a witness he would testify to: * He signed an administrative reprimand involving the applicant on 7 January 1996 * He had no personal knowledge of any facts of the incidents that formed the basis of the reprimand, he based his decision on the reports and representation from his subordinates, he assumed the information contained was accurate and truthful * If the reports were proven to be inaccurate or mischaracterization, he would have reconsidered issuing the administrative reprimand and taken actions necessary to correct the injustice to the officer involved, if it was done deliberately, it would be a serious breach of trust and faith in the reporting officers * A basic principle of the command was to care for subordinates, proved with tools and resources for success, deliberately hinder junior officers' successful execution of a mission would be a violation of basic principles as well as setting an officer up for failure hh. Stipulation of testimony from SFC if called as a witness he would testify to: * He replaced CPT who replaced the applicant at La Goave * CPT ODA team was removed from the island when he arrived, the impression was the team was not successful, apparently CPT was having problems with the local population * Prior to arrival in Haiti, he was told to avoid the applicant, he was trouble, but he found the applicant was a capable officer * His opinion was black personnel were uncomfortable, there was a belief they were not treated fairly or equal, there was favoritism, he was aware of two black officers who left the command unhappy ii. Stipulation of testimony form SFC if called as a witness he would testify to: * On 15 November 1995, he served at the HACC assistant director in Haiti, he led two convoys for procurement of school supplies issued by non- governmental organizations * The applicant drove the trail vehicle * The warehouse was closed and were told the supplies would be issued on 16 November 1995, they returned to the UN HQs jj. Stipulation of testimony from SFC if called as a witness he would testify to: * October/November 1995 he was the Morale, Welfare, and Recreation point of contact for the 445th CA BN in Haiti * On 12 November 1995, he asked the applicant if he was interested in going to Club Med, this was their first encounter regarding this rest and recuperation * The applicant stated he would only if he could leave Club Med during the day to conduct CA business in Port au Prince * The applicant did not go to Club Med kk. Stipulation of testimony from SFC if called as a witness would testify to: * 11 November 1995 he was on the LCU with the applicant, he was getting life jackets for the Zodiac boats and the applicant was obtaining school supplies for the island * He went with the applicant to speak with MAJ about the use of the vehicle the applicant obtained, the vehicle was to stay on the mainland for the ODA personnel * The LCU only traveled to the island once a week, on 15 November 1995, the applicant told him he was remaining in Port au Prince until he secured the school supplies * The applicant asked him to make arrangements with CPT to pick him up after the supplies were secured, CPT refused to pick up the applicant ll. Stipulation of testimony from SPC if called as a witness he would testify to: * He was the supply SPC for the 445th CA BN, he was responsible for issuance and documentations of vehicle hand receipts * He observed CPT ask the applicant for the keys to the vehicle in his possession, the applicant told her where the vehicle was and she needed to see SPC for a hand receipt, she stated it was ridiculous and left the room, the vehicle was hand receipted to the applicant * The applicant never refused to turn over the keys to CPT nor was he ordered by her to do so, the applicant's demeanor was proper and respectful * The vehicle was a CMOC asset it did not belong to the ODA * He gave two previous statements in the matter and the statement dated 30 November 1995 was not accurate, he was told what to write by his commanding officer LTC he wrote the accurate statement on 18 December 1995 mm. Stipulation of testimony from SSG if called as a witness would testify to: * Worked with the applicant on various CA projects after CPT arrived * The applicant was energetic, capable, concerned, and innovative CA officer, he enjoyed his job working with people he assisted * 16 November 1995, the applicant was on the LCU when it left the island to obtain school supplies nn. Stipulation of testimony from SSG if called as a witness he would testify to: * He was part of the CA team with the applicant, later part of October 1995 the team was reassigned to the ODA team, the fourth in country reassignment in less than 1-month * The applicant made arrangements to depart the island on the LCU to obtain school supplies with the consent of the ODA commander CPT * Before departure the applicant briefed him on the CA mission on the island * While in Port au Prince the applicant kept in contact with him, due to the supply issue he intended to miss the LCU scheduled for 16 November 1995 and would stay until he obtained them oo. On 12 January 1998, the applicant appealed the evaluation report for period of 12 October through 30 November 1995, based on substantive inaccuracy, unjust evaluation, improper rating scheme, and favorable involuntary separation board findings. The applicant stated the relief for cause OER contained statements that were found to be inaccurate, unproven, and slanderous. The rater incorrectly stated he exhibited poor judgement by absenting himself from his appointed place of duty for extended periods. Also stated was that he was relieved for failure to perform his duties in a professional manner, dereliction of duty, and disobedience of a direct order, which was unproven. The rater and senior rater ignored the applicant when he informed them, they were not in his rating chain and their accusations were incorrect, out of context, and incorrect. The OER was unfair when the rater and senior rater labeled him a liar and unreliable. It was also stated he often failed requirements, but that allegation was not support with comments. He filed a complaint with the Inspector General and requested a commander's inquiry to MG but were ignored. He was unjustly relieved using comments that he made disparaging remarks about the battalion commander and other officers which was incorrect, and he was never counseled regarding any of these actions. The show cause board had shown the applicant was not derelict in his duties and he performed in a professional manner and he was retained in the service. pp. On 20 February 1998, the commander of the USASOC responded to his request for OER redress stating the regulation required the wrong adversely affected him personally, which he provided no information that indicated such. Also, the proper means for appeal was through Army Regulation 623-105 (Officer Evaluation Reporting System), chapter 9. qq. Excerpt from the elimination board script shows the board found the applicant did disobey a direct order, but he did not fail to appear to his appointed place of duty and did not miss movement. The board recommended he be retained in the service. rr. On 6 March 1998, the commander of USASOC recommended approval of the board findings and recommendations. ss. On 22 March 1998, 364th CA BDE chaplain LTC stated the applicant approached him on 12 October 1995 at the airport enroute to Fort Bragg, NC and requested to speak privately. During the conversation, the applicant stated he heard rumors the battalion leadership was making plans to set his team up for failure in Haiti. The applicant had a firm belief his leadership would not single him out for such malicious treatment. After their conversation, the applicant felt relief the plans would not come to fruition and he would set his fears aside and perform to his very best. Between 21 through 22 March 1998, the applicant met with him again and remined him of the previous conversation. The applicant told him some of the fears he had then turned out to be true and that he was relieved for cause in Haiti due to allegation of misconduct by his leadership and he was ordered to stand before an involuntary separation board. tt. On 8 August 2001, the applicant wrote to MG congratulating him on his promotion and selection as the commander of USACAPOC. He was also writing under the open-door policy regarding an ordeal that began in December 1995 in Haiti while assigned to the 445th CA BN. He further stated the deployment was an emotional, financial, physical, and moral disaster for his family. The unjust situation effectively ended his CA career and set his personal and business life into a tailspin and the mark against him still followed him to that day. He was labeled a troublemaker and volatile outsider. What happened to him should never happen to any Soldier. He requested assistance in the clearance of any bars towards his career progression from Lieutenant General (LTG) uu. On 22 December 2003, the applicant responded to the ABCMR letter dated 19 August 2003 where the Board returned his case without action as the applicant had not exhausted administrative remedies for his request to remove the relief for cause OER and GOMOR from his official records on the basis he was retained by the involuntary separation board. The applicant stated he attempted to exhaust all administrative remedies, but he received no response from the commander's inquiry to all levels of leadership up to congressional representative. He believed the documents he provided should show a clear and compelling reason to purge his records of adverse documents. He requested reconsideration of his application. vv. On 5 October 2005, the applicant responded to the ABCMR letter dated 21 August 2005 which informed him his request was denied by the Board. He stated he would be submitting for reconsideration. He inquired how the Board stated the involuntary separation had no merit but at the same time considered one of the findings of that Board as support to deny his application and how the Board considered an OER from the period of 11 January 1992 as evidence for his application when the relief for cause and GOMOR occurred in 1995. He argued this report had no bearing on a fair adjudication of his case since the report was appealed and written 2-years prior to the issue being brought before the Board. He also believed the Board set a precedence despite those evaluations the Board ordered his promotion to CPT in 1996 and nothing had changed in his record since. He did request the Board provide him the guidelines of the Secretary of the Army in order to submit evidence and argue properly before the Board. ww. On 23 February 2006, the applicant wrote to HRC providing an addendum to his appeal of OERs for the period of 12 October through 30 November 1995 and 20 December 1993 through 19 December 1994. For the OER in 1995 he contended the rater and senior rater were not authorized to rate him as his detachment was attached to the Special Operations Task Force upon arrival in Haiti. The relief for cause OER was drafted less than 30-days in country, which was a violation of AR 623-105. The statements in the evaluation were false and failure to remark on his true performance during the mission. He was retained by the involuntary separation board on the allegations set forth in the OER. The OER for the period during 1993 through 1994, the applicant was required to draft his OER in his handwriting to be transferred to the final document; however, the writing was tampered with or altered. This is evident as it is two different writing styles and the numerical rating was changed. xx. On 21 October 2013, wrote the (the applicant) stating he never lied while he was in the military. He resented the applicant's accusations and would not engage in any further dialogue with him unless he accepted responsibility for his actions and refrained from character assassinations that were unfounded and inappropriate. He remembered the situation in 1995 as the applicant was told to do something which he failed to do, and it was the battalion commander's decision to send the applicant home. yy. On 1 December 2017, applicant's counsel wrote requesting assistance in correcting the applicant's records regarding the evaluation and GOMOR from 1995. zz. On 24 May 2019, applicant's counsel wrote requesting his assistance in addressing an injustice against the applicant. The applicant was requesting a letter of support though his counsel to have the GOMOR removed from his record as who issued the GOMOR based on secondhand information from persons who when out of their way to sabotage the applicant's career to the point for circumventing the chain of command due to personal animosity. aaa. On 6 June 2019, MG (retired) wrote MG stating he had no recollection of a GOMOR he wrote over 20-years prior, nor did he remember the applicant. He requested MG Staff Judge Advocate (SJA) respond to the letter requesting assistance. bbb. E-mail dated 12 August 2019 from USACAPOC SJA stating there was no intention to directly respond to their client's request as the requested action was under the purview of MG ccc. On 23 August 2019, applicant's counsel wrote again requesting his assistance to correct an injustice and ask he provide a letter to the ABCMR to support his request to have the GOMOR removed from his record in order to be reconsidered for promotion to MAJ. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered. There were numerous documents to review, and the Board dully considered all arguments. Based upon a preponderance of the evidence, the Board determined there is insufficient new evidence to amend the previous Board’s decision. 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 to amend the decision of the ABCMR set forth in Docket Number AR20060011992 on 30 January 2007. 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. Army Regulation (AR) 15-185 (Army Board for Correction of Military Records), prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2–11 (Army Board for Correction of Military Records hearings), states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCM may grant a formal hearing whenever justice requires. 2. AR 623-105 (Personnel Evaluation Reports – Officer Evaluation Reporting System), in effect at the time, sets policies and procedures for. the Officer Evaluation Reporting System (OERS). a. Paragraph 3-1a (Rating Chain), the rating chain must correspond as nearly as practical to the chain of command and supervision within an organization, regardless of component or geographical location. b. Paragraph 5-18 (Relief for cause), a. A report is required when an officer is relieved for cause regardless of the rating period involved. Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty. c. Paragraph 9-2f, an appeal must be supported by substantiating evidence. An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered. d. Paragraph 9-2h (1), it should be noted that the rated officer's authentication in Part II of DA Form 67-8 verifies the information in Part I. It also confirms that the rating officials named in Part II are those established as the rating chain and authenticates the accuracy of the Army Physical Fitness Test performance and height and weight data entries made by the rated officer in Part IVa. Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated officer will be accepted only under the most unusual and compelling circumstances. e. Paragraph 9-2i, appeals alleging bias, prejudice, inaccurate or unjust ratings or any matter other than administrative error are substantive in nature and will be adjudicated by the Officer Special Review Board (OSRB) (para 9-8). Claims of inaccuracy of a substantive type pertain to parts IIa and c, IV, Vb, c; d, e, VI, and VII of DA Form 67-8 and similar items in other evaluation forms, report enclosures, and OER addenda. 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. f. Paragraph 9-3 (Timeliness), b, substantive appeals must be submitted within 5- years of the OER's completion date. Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exemption. g. Paragraph 9-7 (Burden of proof and type of evidence), a. The burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that: (1) The presumption of regularity should not be applied to the report under consideration. (2) Action is warranted to correct a material error, inaccuracy, or injustice. b. Clear and convincing evidence must be of a strong and compelling nature, merely proof of the possibility of administrative error or factual inaccuracy. 3. AR 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 Army Military Human Resource Record (AMHRR). a. Paragraph 6-2 (Department of the Army Suitability Evaluation Board (DASEB) Filing Determinations), f, the DASEB makes determinations, upon appeal, on requests to transfer unfavorable information from the performance to the restricted portion of the AMHRR. The DASEB may recommend the transfer of those administrative memoranda of reprimand when such transfer would be in the best interest of the Army. b. Paragraph 6-3b (2), the DASEB will presume that once an official document has been properly filed in the AMHRR, it is administratively correct and was filed pursuant to an objective decision made by a competent authority. Thereafter, the burden of proof rests with the recipient responsible for providing clear and convincing evidence to support the document is either untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR; or has served its intended purpose, and it is in the best interest of the Army to transfer it to the restricted portion of the AMHRR. c. Paragraph 7-1 (Appeal authority), the DASEB is the initial appeal authority and makes recommendations for removal, alteration, or transfer of unfavorable information entered in the AMHRR. This chapter sets forth the policies and procedures whereby a person may seek removal of unfavorable information from his or her AMHRR, or transfer of unfavorable information from the performance file to the restricted file of his or her AMHRR. d. Paragraph 7–2 (Policies and Standards), an officer who directed the filing in the AMHRR of an administrative memorandum of reprimand, admonition, or censure, may request its revision, alteration, or removal if later investigation determines such information is untrue/unjust in whole or in part. The basis for such determination must be provided to the DASEB in sufficient detail to justify the request. Subparagraph d, (Burden of proof and level of evidence required), (1) once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct, and to have been filed pursuant to an objective decision by a competent authority. (2) (Removals), There is no time restriction for submitting an appeal for removal of unfavorable information from the AMHRR. The recipient has the burden of proof to show, by clear and convincing evidence, to support assertion that the document is either untrue or unjust, in whole or in part. Evidence submitted in support of the appeal may include but is not limited to an official investigation showing the initial investigation was untrue or unjust; decisions made by an authority above the imposing authority overturning the basis for the adverse documents; notarized witness statements; historical records; official documents; and/or legal opinions. The DASEB will not consider appeals that merely allege an injustice or error without supporting evidence or a compelling argument. Appeals such as these will be returned without action. The DASA (RB) is the final decision authority for removal of unfavorable information from the AMHRR. This authority will not be further delegated. 4. AR 135-155 (Army National Guard (ARNG) and U.S. Army Reserve (USAR) – 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). a. Paragraph 2-10e (Promotion eligibility), (1) To be considered for promotion by a selection board, a commissioned officer (other than a commissioned warrant officer) must have continuously performed service on the RASL, the ADL, or a combination of both during the 1-year period ending on the date the board convenes. To be considered for promotion to Major, the Soldier must have a minimum time in grade of 4-years and have completed the officer advanced course. b. Paragraph 3–19a, officers and warrant officers who have either failed of selection for promotion, or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board or a special selection board, as appropriate. (2) Special selection boards, convened under the Reserve Officer Personnel Management Act (ROPMA) on and after 1 October 1996, will reconsider commissioned officers, (other than commissioned warrant officers) who were wrongly not considered and reconsider commissioned officers (other than commissioned warrant officers) who were considered but not selected by mandatory promotion boards that convened on or after 1 October 1996. It must be determined that there was a fair risk that an adverse document, required to be removed from the officer's records as of the convening date of the board, was seen by the board. 5. AR 600-8-104 (Military Management Information Management/Records) in effect at the time states the Proceedings of Boards of Officers will be filed on the commendatory/disciplinary section of the OMPF only when attached as an enclosure to an adverse action in cases where it is essential to clarify the action taken or when the action results in the discharge of an enlisted member. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210017428 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1