IN THE CASE OF: BOARD DATE: 14 September 2022 DOCKET NUMBER: AR20220003164 APPLICANT REQUESTS: * removal of the ratings and comments in Part VII (Senior Rater) of his DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 28 May 2003 through 27 May 2004 * set aside of his involuntary release from the Active Guard Reserve (AGR) Program on 22 April 2005 * reinstatement in the AGR Program until he reaches his mandatory removal date in 2008, then transfer to the Retired Reserve * back pay and allowances for the period covering his involuntary release from the AGR Program through his mandatory removal date/transfer to the Retired Reserve 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) * Counsel's Supplemental Statement with Exhibits A through D – * Exhibit A – DA Form 67-9 with OER Referral Memorandum and Applicant's Comment * Exhibit B – Investigating Officer's Report and Supporting Memorandums * Exhibit C – Memorandums of Letters of Authorization * Exhibit D – Memorandums of Notice of Involuntary Release from Active Duty 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 the interest of justice to excuse the applicant's failure to timely file. 2. The applicant defers to counsel. 3. Counsel states it is in the interest of justice to consider the applicant's request because he was a Department of the Army civilian pilot for combat operations in Iraq and Afghanistan from 2007 through 2011; he was issued a Top Secret security clearance to fly Army intelligence aircraft in October 2007; and his delayed symptoms of depression and post-traumatic stress disorder (PTSD) after 5 years as a combat pilot in Iraq and Afghanistan (2007-2011). a. The OER at issue was referred when the applicant's senior rater alleged that he violated operational security about the unit's location, mission, and vulnerabilities to a reporter during wartime, risking the mission and personnel safety. b. An investigation into the alleged operational security violations found that the applicant violated Article 92 (Failure to Obey an Order), Uniform Code of Military Justice (UCMJ), but due to the nature of the released classified information – the negligible impact on the unit changing its tactics, techniques, and procedures – the severity of this case does not warrant a general court-martial but should be handled through general officer-level nonjudicial punishment under the provisions of Article 15 (Commanding Officer's Nonjudicial Punishment), UCMJ. The court-martial convening authority agreed by dropping the charges, but he disagreed with imposing nonjudicial punishment and declined to take any adverse action. c. The applicant's rater in this OER did not allege any operational security violations, but instead wrote all favorable narrative comments about the applicant's duty performance. The rater's positive evaluation is completely opposite of the senior rater's evaluation. The senior rater was stymied and unsatisfied, and flaunted the Article 32 (Preliminary Hearing), UCMJ, findings in his comments. d. Under theory of collateral estoppel (a common law doctrine that prevents a person from relitigating an issue) as applied to agency adjudication, the senior rater here is precluded through the backdoor of an OER process, to resurrect the Article 32 and insert himself as the convening authority to substitute his own adverse findings of operational security violations and issue a career-ending referred OER. e. Without nonjudicial punishment under Article 15 or a reprimand, the senior rater chose to ruin the applicant' career with a referred OER. In fact, the senior rater's comments that stated, "Do Not Promote" and "Do Not Retain," appear to be an Article 15 charge or reprimand for misconduct – in substance, if not in form. f. In October 2004, the applicant was given notice of his AGR involuntary release caused by the referred OER during his initial AGR tour. He submitted a request for a waiver of AGR release and his request was denied. 4. The applicant's symptoms of depression and PTSD were the result of his civilian employment from 2007 through 2011 after his retirement from the military as stated by counsel; therefore, his symptoms of depression and PTSD will receive no further discussion. 5. The applicant was serving in the U.S. Army Reserve in the rank/grade of chief warrant officer four (CW4)/W-4 when he was ordered to active duty in an AGR status with a reporting date of 25 November 2001. 6. The two 2nd Battalion, 228th Aviation Brigade, memorandums (Statement Concerning Article 32 (Preliminary Hearing) on (Applicant)), 29 December 2003, attest to the applicant's experience as an Army aviator and address the applicant's unit's failure to mitigate threats and adequately protect the unit's aircraft from being shot down. 7. The Company A, 3rd Battalion, 58th Aviation Regiment, memorandum from the Article 32 investigating officer (Article 32 Investigation Findings in United States vs. (Applicant)), 1 January 2004, states: a. The applicant was charged with violating Article 92, UCMJ, by allegedly willfully being derelict in his duties by failing to safeguard sensitive information and disclosing to the media the vulnerabilities of his unit's aircraft, mission, and procedures. The media then used this information in a related article published in the September 2003 National Defense Magazine, titled: "Army VIP [Very Important Person] Transports Vulnerable to Shoulder Fired Missiles." b. He believes the applicant was in violation of the Article 92 charges. He believes the applicant released this information in order to circumvent and possibly change a decision made by his chain of command with regard to how to mitigate the threat faced by fixed-wing aircraft. However, due to the nature of the released classified information in this article and the negligible impact it has had on the unit changing its tactics, techniques, and procedures, he feels the severity of this case doesn't warrant a general court-martial but should be handled through general officer-level nonjudicial punishment. 8. The applicant's DA Form 67-9 covering the period 28 May 2003 through 27 May 2004 shows in: a. Part IId (This is a referred report, do you wish to make comments?), the rater marked this block and the applicant marked "Yes, comments are attached"; b. Part V (Performance and Potential Evaluation), the rater marked "Satisfactory Performance, Promote" and entered no negative comments; c. Part VII (Senior Rater), the senior rater marked "Do Not Promote," rated his potential as "Below Center of Mass – Do Not Retain," and commented: "[Applicant] demonstrated exceptionally poor judgement during this rating period while deployed to Iraq participating in the Global War on Terrorism. Despite 37 years of service, [Applicant] elected to violate established security and public affairs principles by communicating with a civilian reporter about this unit's mission, location, and the vulnerabilities of this unit's equipment. This breech of OPSEC [operations security] resulted in an article that provided sensitive and classified information through non- secure means. This breech detracted from the unit's mission accomplishment and placed fellow pilot's [sic] and passenger's [sic] lives at greater risk. [Applicant] should not be promoted or placed in positions of responsibility. Do not retain in the AGR program." 9. The applicant's memorandum (Comments to Referred OER (Applicant)), 9 August 2004, states he is commenting because he believes the senior rating he received in his OER is not an accurate reflection of his performance. Certain remarks contained in the report are incorrect and not fact-based. a. He does not believe his communication with a civilian reporter was a violation of established security or public affairs principles as stated by his senior rater. His senior rater brought forth those charges. After a through investigation, and on the recommendation of his senior rater's brigade commander, the Combined Joint Task Force 7 Commander dropped those charges. The information provided to the media was available from non-secure sources, including an email disseminated to family members at a Family Support Program picnic. b. He never detracted from the unit's mission or placed any pilots' or passengers' lives at risk. 10. The applicant's records contain no evidence of a Commander's Inquiry or an OER appeal. 11. The U.S. Army Human Resources Command (HRC) memorandum (Notice of Involuntary Release from Active Duty – (Applicant)), 29 October 2004, notified him that he was ineligible for subsequent duty in the AGR Program because he received a referred OER during his initial AGR tour. He was instructed that he may request a waiver of his disqualification no later than 30 days from receipt of this notification. 12. The applicant's memorandum (Request for Waiver – (Applicant)), 23 November 2004, states: a. He requests a wavier as he is developing an appeal of the referred OER and his success in the appeal will remove the basis for his disqualification for retention. b. His senior rater referenced unproven derogatory information which is prohibited in accordance with Army Regulation 623-105 (Officer Evaluation Reporting System), paragraph 3-27 (No References Made to Unproven Derogatory Information). These charges were originally made by his senior rater. After a complete investigation, the charges were dropped prior to the end of the rating period. The charges were dropped by the Combined Joint Task Force 7 Commander on the recommendation of his brigade commander. c. His senior rater also claimed that his actions placed fellow pilots' and passengers' lives at greater risk. He enclosed two statements from the investigation that will be included in the appeal to counter that claim. Also enclosed is his OER support form showing no mandatory face-to-face counseling and a copy of the rating scheme that was not followed in accordance with the Army regulation. 13. The HRC memorandum (Notice of Involuntary Release from Active Duty – (Applicant)), 13 January 2005, notified the applicant that his request for continuation in the AGR Program was disapproved. 14. He was honorably released from active duty on 22 April 2005. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 12c (Net Active Service This Period) – 3 years, 4 months, and 28 days * item 12d (Total Prior Active Service) – 6 years, 9 months, and 28 days * item 12e (Total Prior Inactive Service) – 28 years, 4 months, and 9 days 15. HRC Orders P03-683141, 22 March 2006, retired him and placed him on the Retired List effective 14 June 2006. 16. The Department of the Army Program Executive Office memorandum (Letter of Authorization/Contractor Travel Authorizations), 26 October 2007, shows the applicant's approved authorization for travel for the period 27 October 2007 through 30 April 2008 as a civilian contractor. The purpose of the travel authorization is to perform efforts as dictated under the contract in support of Operation Iraqi Freedom. 17. Two additional letters of authorization, 24 August 2010 and 12 July 2011, show the approved authorizations for the applicant's travel for the periods 24 August 2010 through 23 August 2011 and 12 July 2011 through 30 June 2013. 18. The HRC memorandum from the Chief, Evaluations, Selections, and Promotions Division (Advisory Opinion – (Applicant)), 2 June 2022, states that after a thorough review of all documents, he found the applicant's request to remove the senior rater comments and marks from his referred OER was not warranted. a. In accordance with Army Regulation 623-105, paragraph 3-27d, any verified derogatory information may be entered on an OER. The memorandum (Article 32 Investigation Findings in United States vs. (Applicant)), 1 January 2004, determined he was in violation of Article 92 by being willfully derelict in his duty to protect classified information. b. Although that memorandum states the case did not warrant a general court- martial, it did warrant punishment under the UCMJ. The applicant contends the Combined Joint Task Force 7 Commander (the convening authority) dropped the charges and declined to take any adverse action, that there was no UCMJ or letter of reprimand. However, the final documentation from the convening authority was not included in his request to support his claim, nor was the complete Army 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation provided. c. The applicant should have requested a Commander's Inquiry at the time of the referred OER to look into any inaccurate or untrue statements or a lack of objectivity or fairness by his senior rater. However, no Commander's Inquiry results were presented that may have shed light into his claims. d. Army Regulation 623-105, appendix F (Constructing an Evaluation Report Appeal), allows for third-party statements. Statements from individuals who establish they were on hand during the contested rating period, who refute faulting remarks in the evaluation report and who served in positions from which they could observe the applicant's performance and his/her interactions with rating officials, are both useful and supportive. The statements provided speak to his character, but do not meet the regulatory threshold for support based on the above requirement. 19. The applicant was provided a copy of the advisory opinion on 2 June 2022 and given an opportunity to comment and/or submit a rebuttal. He did not respond. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was not warranted. The Board through counsel carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review through counsel of the applicant’s petition, available military records and the Army Human Resources Command (AHRC) Evaluation, Selection and Promotions Division advisory opinion, the Board concurred with the advising official finding the applicant and his counsel did not provide the final documentation from the convening authority that the charges were dropped and they declined to take any adverse action. 2. Furthermore, the Board noted that in accordance with the regulation the applicant or his counsel should have requested a Commander’s Inquiry (CI) at the time the report was rendered. As stated by the advising official the CI would allow review for any inaccurate or untrue statements, a lack of objectivity or fairness of his Senior Rater. However, no CI results were presented that may have shed light into his claims. The Board determined the applicant’s counsel did not demonstrate by a preponderance of evidence that procedural error occurred that was prejudicial to the applicant and by a preponderance of evidence that the contents of the referred Officer Evaluation Report (OER) are substantially incorrect and support removal. Additionally, the Board insufficient evidence that would support reinstatement into the AGR Program until the applicant reaches his mandatory removal date in 2008, then transfer to the Retired Reserve nor back pay and allowances for the period covering his involuntary release from the AGR Program through his mandatory removal date/transfer to the Retired Reserve. Therefore, relief was denied. 3. This board is not an investigative body. The Board determined despite the absence of the applicant’s evidence, they agreed the burden of proof rest on the applicant, however, he did not provide any supporting documentation and his service record has insufficient evidence to support the applicant contentions to support removal of the referred Officer Evaluation Report (OER) from his service record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, 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 15-185 (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 ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of evidence. 3. Army Regulation 135-18 (The AGR Program), 10 December 2003, prescribed the policy and procedures for the administration of the AGR Program. It provided the Army policy for the selection, utilization, and administration of Army National Guard of the United States and U.S. Army Reserve Soldiers ordered to active duty. Table 2-5 (Waivable Disqualification for Subsequent Duty in the AGR Program), section F, stated an officer who received a referred OER while in the AGR Program is a waivable disqualification. 4. Army Regulation 623-105 (Officer Evaluation Reporting System), 1 April 1998, prescribed the officer evaluation function of the military personnel system. It also provided guidance regarding redress programs, including Commander's Inquiry and appeals. a. Paragraph 3-27 (No References Made to Unproven Derogatory Information) stated no reference will be made to an incomplete investigation (formal or informal) concerning an officer. This restriction is intended to prevent unverified derogatory information from being included in evaluation reports. It will also prevent unjustly prejudicial information from being permanently included in an officer's Official Military Personnel File, such as: (1) charges that are later dropped or (2) charges or incidents of which the rated officer may later be absolved. b. Chapter 6 (Officer Evaluation Redress Program) stated the Officer Evaluation Redress Program consists of several elements at various levels of command. The program is both preventive and corrective in nature in that it is based upon principles structured to prevent and/or provide a remedy for alleged injustices or regulatory violations, as well as to correct them once they have occurred. c. Paragraph 6-3 (Purpose) stated the primary purpose of the Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record. d. Paragraph 6-4 (Policy) stated the Commander's Inquiry will not be used to document differences of opinion between members of the rating chain (or between the commander and members) about an officer's performance and potential. The commander inquiry will be made by a commander in the chain of command above the designated rating officials involved in the allegations. The commander may determine through his or her inquiry that the repot has serious irregularities or errors. Examples include (but are not limited to): (1) improperly designated or unqualified rating officials; (2) inaccurate or untrue statement; and/or (3) lack of objectivity or fairness by rating officials. e. Section III (Appeals), paragraph 6-6 (Policies), stated an evaluation report accepted for inclusion in the official record of an officer is presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. f. Paragraph 6-7 (Timeliness) stated because evaluation reports are used for personnel management decision, it is important to the Army and the individual officer that an erroneous report be correct as soon as possible. As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. (1) Substantive appeals. All appeals on reports prepared on the DA Form 67-9 must be submitted within 3 years of the completion date. Failure to submit an appeal within this time frame may be excused only if the appellant provides exceptional justification to warrant this exception. (2) Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered. However, the likelihood of successfully appealing a report diminishes, as a rule, with the passage of time. Prompt submission is, therefore, recommended. g. Appendix F (Constructing an Evaluation Report Appeal), paragraph F-2b(2), stated third-party statements form the basis of most substantive appeals. Third parties are persons who have official knowledge of the rated individual's duty performance during the period of the report being appealed. Statements from individuals who establish they were on had during the contested rating period, who refute faulting remarks on the evaluation report and who served in positions from which they could observe the appellant's performance and his/her interactions with rating officials, are both useful and supportive. These statements should be specific and not deal in general discussion of the appellant. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003164 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1