IN THE CASE OF: BOARD DATE: 16 August 2023 DOCKET NUMBER: AR20230001215 APPLICANT REQUESTS: removal of the Referred Officer Evaluation Report (OER) for the period 19 May 2018 thru 1 May 2019 (hereafter referred to as the contested OER) from his Army Military Human Resource Record (AMHRR). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant memorandum, 17 October 2022 * DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) Officer Evaluation Report), 19 May 2018 thru 1 May 2019 * Memorandum, Army Review Boards Agency, Department of the Army Suitability Evaluation Board (DASEB), 15 July 2021 * DASEB Reconsideration Record of Proceedings, Docket Number AR20220000838, 22 February 2022 * Memorandum, Commander, Headquarters, 3rd Special Forces Group (Airborne), 5 October 2022 * Memorandum, Former Commander, 3rd Special Forces Group (Airborne), undated * Memorandum, Chief of Staff, Headquarters, U.S. Army Special Operations Command, 4 October 2022 FACTS: 1. The applicant respectfully requests removal of the contested OER, from his OMPF. He states inclusion of the contested OER in his OMPF has resulted in two non-select board determinations and he currently has a termination of service date of 1 March 2023. Specifically, this request is supported by adjacent entities as the DASEB unanimously voted to remove the original GOMOR, additional inquiries cleared me of the allegations, and the rater and senior rater who authored the Referred OER in question support this OER being removed along with the chain of command who conducted a follow-on commander’s inquiry. a. Facts - (1) He received a General Officer Memorandum of Reprimand (GOMOR) for alleged unprofessional conduct while conducting a pre-deployment site survey (PDSS) in Erbil, Iraq in April 2019 and for making a false official statement. Both aspects were determined to be either untrue or unjust representations of the events. (2) On 1 May 2019, the thru date of the OER in question, he was informed by the rater that there would be a commander’s inquiry due to an allegation of drinking while on PDSS in April 2019. On 15 May 2019, he met with the investigating officer and was informed he was the subject of an Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation for violation of General Order #1, violations of flight line procedures, boarding an aircraft while intoxicated, and conduct unbecoming an officer. On 10 June 2019, the investigating officer submitted his findings to the senior rater and recommended a GOMOR for a false official statement. All other allegations were determined to be unfounded. (3) On 9 July 2019, he was informed he would receive a GOMOR for falsifying an official statement and he submitted his rebuttal with 11 character references on 30 July 2019, requesting a local filing. On 9 September, he was informed the decision had been made to permanently file the GOMOR on 22 August 2019. (4) On or about 25 October 2019, he was informed that he had been selected for promotion to Major (MAJ) on the Fiscal Year 2019 (FY19) Army Competitive Category (ACC) MAJ Promotion Selection Board (PSB), but he was a scroll withhold, pending a Promotion Review Board, due to derogatory information (the GOMOR) within his OMPF. (5) On 11 August 2020, he was informed of his removal from the promotion list for the FY19 ACC MAJ PSB at the recommendation of the Promotion Review Board. (6) On 28 August 2020, the rater, then-Lieutenant Colonel (LTC), signed the referred OER in question. On 31 August 2020, the senior rater, Colonel (COL), signed the referred OER. On 14 September 2020, the applicant signed the OER, and it was submitted to HQDA. (7) On 21 May 2021, he submitted a request for removal of the GOMOR to the DASEB - endorsed by the imposing authority and the Group Commander at the time of the Investigation (the senior rater) - and on 23 July 2021, he was notified he had received partial relief and the GOMOR was moved into the restricted fiche of my OMPF. (8) On 29 September 2021, he was informed of impending separation from the Army due to non-selection on two Major promotion boards. He was further denied Selective Continuation due to the inclusion of a GOMOR and a referred OER in his OMPF; he was given a separation date of 1 April 2022. (9) On 1 February 2022, after a commander’s inquiry into the incident and investigation, he submitted a second request for removal of the GOMOR to the DASEB and was granted full relief on 22 February 2022. The DASEB mandated that “any other derogatory documents related to the GOMOR” be removed. (10) On 29 March 2022, he was notified of the initiation of a Special Selection Board (SSB) for the FY19 ACC MAJ PSB due to the removal of the GOMOR from his OMPF. The initiation of the SSB retained him on Active Duty and his separation date was adjusted to 1 March 2023. (11) On 20 September 2022, he was notified that the SSB resulted in a non- promote determination due to the inclusion of a referred OER in his OMPF. b. Argument – (1) There is a referred OER from 2019 in his AMHRR that contains derogatory information that is unjust and must be removed. The OER’s rater and senior rater comments refer to an incident that occurred on 11 April 2019 and resulted in an AMHRR filed GOMOR, which was removed as unjust in February 2022. The rater states: “Unfortunately, [the applicant] made some poor decisions that called into question his judgment during this rating period.” The Senior Rater states: “Unfortunately, some of his decisions called into question his judgement.” These comments directly reference the incident that resulted in the GOMOR, which was removed, and the result of an initial investigation that was initiated and completed after the rating period. The rater and senior rater also stated that his performance during the rating period was “outstanding” and that he “accomplish the mission every time.” These sentiments are echoed in their respective letters of support to remove this OER from his OMPF and highlight that this OER is an injustice. (2) The Referred OER has a thru date of 1 May 2019 but was not filed until 14 September 2020. Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-20e states: “Evaluation reports will not be delayed to await the outcome of a trial or investigation unless the rated Soldier has been removed from their position and is in a suspended status (see paragraphs 3–55 and 3–56). Upon completion of the trial or investigation, processing of evaluation reports will resume. Evaluation reports will be completed when due and will contain what information is verified at the time of the “Thru” date of the evaluation report.” He was not removed from his position during the rating period, he did not receive a relief for cause OER, nor was he suspended from his duties during the course of the investigation. The extreme length of time between the thru date and the filing date constitutes a grave injustice to the rated individual as it includes information not verified at the time of the thru date and later proven to be untrue or unjust. The OER was unjustly withheld and completed 13 months after the GOMOR had been filed and 16 months after the thru date, creating an unfair and biased snapshot of his performance during that rating period, misrepresenting his service. (3) The Referred OER references an incident invalidated by DASEB proceedings. The GOMOR was determined to be unjust based on the evidence presented after his Group Commander conducted an inquiry in October 2021. Further, DASEB Docket AR20210009817 states in Paragraph 8.b: “The OER covering the period of the GOMOR did reflect the incident.” In DASEB Docket AR20220000838, the DASEB stated in paragraph 1.b: “This action does constitute grounds for promotion reconsideration, if previously non-selected, and removal of any other derogatory documents related to the GOMOR.” As established above, the unanimous DASEB decision to remove the GOMOR as unjust would also apply to the removal of the Referred OER, if not governed by different regulatory documents, as the two are connected and the OER discusses the incident which unjustly resulted in the initial filing of the GOMOR. c. Over the last 36 months, he has worked meticulously to overcome this event and reestablish his career as an Army Officer. He reclaimed the trust and confidence of his chain of command swiftly 2. The applicant is presently serving in the Regular Army in the rank of MAJ. He was promoted to MAJ on 1 August 2022. 3. A review of the applicant's record shows the contested OER is filed in the performance section of his OMPF. 4. The applicant signed/received the contested OER on or about 14 September 2020, covering the period 19 May 2018 through 1 May 2019 (12 months), which addressed his duty performance as HSC Company Commander. His rater was LTC, Battalion Commander and his senior rater was COL, Group Commander. The contested OER shows in: a. Part I (Administrative), sub-section i (Reason for Submission), the entry "Change of Rater." b. Part II (Authentication), sub-section d. (This is a referred report, do you wish to make comments?), a checkmark was placed in the appropriate block, signifying to the applicant that he was receiving a referred report. In that same block, a checkmark was placed in the "Yes" block, indicating the applicant's comments were attached. c. Part IV (Performance Evaluation – Professionalism, Competencies, and Attributes), sub-section b. This Officer's overall Performance is Rated as, "Capable" and the comment "[The applicant] was hand selected to command Headquarters and Support Company and SUPCEN Commander for Task Force 9.5. [The applicant] is highly intelligent, articulate, physically fit and accomplishes the mission every time. Unfortunately, [the applicant] made some poor decisions that called into question his judgment during this rating period. [The applicant] has taken responsibility and learned from his mistake." d. Part VI (Senior Rater), sub-section a (Potential Compared with Officers Senior Rated in Same Grade), the entry "Qualified." e. Part VI, sub-section c (Comments on Potential), the following comments: [The applicant's] on duty performance was outstanding and he was easily in the top 3 captains in this group. Unfortunately, some of his decisions called into question his judgment. Maintain in current grade, [the applicant] has learned from his mistakes and will absolutely continue to serve as a professional officer in the Army. 5. The applicant provides a/an: a. Enclosure 1, the contested OER for the period 19 May 2018 thru 1 May 2019. b. Enclosure 2, A memorandum to the Commander, U.S. Army Human Resources Command from the President, DASEB, 15 July 2021. After careful consideration, the DASEB voted to approve transfer of the GOMOR, dated 3 July 2019, and all related documents, in that the intended purpose was served and it would be in the best interest of the Army. The action is neither retroactive, nor does it constitute a basis for promotion reconsideration. The copy of the transfer memorandum, record of proceedings, and appeal correspondence will be placed in the applicant's restricted file. c. Enclosure 3, DASEB Reconsideration Record of Proceedings, Docket Number AR20220000838, dated 22 February 2022. d. Enclosure 4, Rater memorandum in Support of Redress Actions of the contested OER dated 5 October 2022. His rater very strongly supports removal of the contested OER from the applicant's AMHRR. His rater served as the applicant's Battalion Commander from June 2017 to June 2019 and currently as his Group Commander from June 2022 to present. He personally selected the applicant to serve as the Headquarters Support Company Commander, a position reserved for the #1 captain in the battalion, in 2018. He was the rater for the referred OER in question and strongly supports his request to remove it. During the rating period, the applicant's performance was exemplary, and he was a critical member of the battalion while preparing for a deployment to the CENTCOM AOR. Since the incident, the applicant maintained an incredible work ethic, dedication to the mission, and demonstrated amazing resiliency while working through a potentially career ending administrative action. (1) The applicant received an AMHRR-filed GOMOR in July 2019 due to the incident referenced in the OER. However, through persistence and adherence to all published guidelines, his GOMOR was removed in February 2022 on the grounds that it was unjust. In light of the evidence presented to warrant the decision to remove the GOMOR in its entirety, he fully supports the removal of the contested OER in that it addresses an incident that has been independently invalidated and should not continue to hamper the applicant's career. (2) The applicant has carefully followed all the regulations to properly adjudicate the GOMOR and this OER from his record, despite numerous administrative setbacks, again speaking highly of his tenacity to get back on course as a leader in the Special Forces Regiment. He feels that retention of officers of this caliber is in the best interest of the Army and it is clear that the nature of the contested OER misrepresents his contributions to the unit and continued presence in his AMHRR is unjust to the applicant's career. The applicant is one of the best officers he has worked with in over 20 years of service and has a lifetime worth of service left to selflessly offer. He asks the Board to consider this removal favorably. e. Enclosure 5, undated Senior Rater memorandum in Support of Redress Actions of the contested OER. As the senior rater for the contested OER he strongly recommends the OER be removed from the applicant's file. He makes this recommendation having closely watched the applicant in the year following these actions. What he observed was an officer who worked as hard as any that he has worked with. (1) The applicant was the single best Deputy Operations Officer he has seen in his 25 years and 17 combat deployments. The applicant took every step to rehabilitate from these actions, he was and is a model officer. He is proud to say that the applicant deserves and has earned the opportunity to continue his career of service to this nation. (2) The applicant received an AMHRR-filed GOMOR in July 2019 due to the incident referenced in the contested OER. However, the GOMOR was removed in February 2022 on the grounds that it was unjust. As with his recommendation on the contested OER, he also recommended in favor of the removal of the GOMOR. (3) In light of the DASEB's decision to remove the GOMOR in its entirety, he supports in the strongest terms the removal of the contested OER as it addresses an incident that should no longer inhibit the applicant's continued service. He feels that retention of officers of the applicant's caliber is in the best interest of the Army. It is clear to him that the contested OER has served it's purpose, and that it's continued presence in his AMHRR is unjust to this tremendous officer's career. He asks the board to consider this request for removal favorably. f. Enclosure 6, Group Commander memorandum in Support of Redress Actions of the contested OER dated 4 October 2022. As the Group Commander for the applicant he personally reviewed the entire case, sworn statements and video involved with the original incident and investigation that resulted in a GOMOR and assisted him in getting that GOMOR removed. (1) His OER was referred based on findings from the investigation that prompted the GOMOR. The negative comments within the contested OER that he made poor decisions that led to questions of his judgment are derived from the GOMOR. With the GOMOR removed in February 2022, the contested OER is also invalid because the comments were based on the invalidated GOMOR. (2) Secondly, the contested OER states that the applicant "accepted responsibility" for his "poor decisions." Unfortunate legal advice led the officer to ceremoniously take responsibility in order to receive mercy in the GOMOR process. The applicant, in an effort to remain in the Army, chose to follow their guidance, believing it was his only chance to remain. The applicant is one of the best officers he has worked with in 32 years of service and has unlimited potential to make significant contributions to our Army. He recommends based on the new evidence that the Board removes this inaccurate evaluation. 6. Regulatory guidance provides, an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF 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. The burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board 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 of the applicant’s petition and available military records, the Board agreed the character letters of support attest to the applicant’s integrity, character and demonstrates the applicant continues to perform exceptionally well in his duties as a captain who during this was selected and promoted to major. The Board determined there was sufficient evidence to support removal of the Referred Officer Evaluation Report (OER) for the period 19 May 2018 thru 1 May 2019 (hereafter referred to as the contested OER) from his Army Military Human Resource Record (AMHRR). The Board noted the applicant’s GOMOR was removed by a DASEB, finding the GOMOR invalid. The Board determined based on the recommendation and actions of the 15 July 2021 board, removal of the applicant’s OER is warranted. Whereas the comments related to his OER was that of the now removed GOMOR. There does appear to be any evidence the contested OER was invalid because the comments were based on the invalidated GOMOR. Therefore, relief is granted. 2. The purpose of maintaining the Army Military Human Resource Record (AMHRR). is to protect the interests of both the U.S. Army and the Soldier. In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the AMHRR. Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority. 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 from his Army Military Human Resource Record (AMHRR) the Referred Officer Evaluation Report (OER) for the period 19 May 2018 thru 1 May 2019 (hereafter referred to as the contested OER). I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation 600-8-104 (Army Military Human Resource Records (AMHRR) Management governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. Appendix B states the DA Form 67-9 and DA Form 67-10-2 are filed in the performance folder of the Soldier's OMPF. 2. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 3-26 (Referred evaluation reports) provides, in pertinent part, that any report with negative remarks about the rated officer's Values or Leader Attributes/Skills/Action in rating official's narrative evaluations will be referred to the rated officer by the senior rater for acknowledgment and comment before being forwarded to HQDA. b. Paragraph 3-28 provides that the referral process ensures the rated Soldier knows that his/her OER contains negative or derogatory information and affords him/her the opportunity to sign the evaluation report and submit comments, if desired. c. Paragraph 4-11a-b states an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF 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. The burden of proof rests with the applicant. (1) Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that – (a) the presumption of regularity should not be applied to the report under consideration. (b) action is warranted to correct a material error, inaccuracy, or injustice. (2) Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. d. Paragraph 4-11d states for a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources (see DA Pam 623-3). Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practicable, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered. The results of a CDR's or Commandant's Inquiry may provide support for an appeal request. e. Paragraph 4-13a(2) states limited support is provided by statements from people who observed the applicant's performance before or after the period in question (unless performing the same duty in the same unit under similar circumstances); letter of commendation or appreciation for specific but unrelated instances of outstanding performance; or citations for awards, inclusive of the same period. 3. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides procedural guidance for completing and submitting evaluation reports and associated support forms to Department of the Army. Paragraph 2-28 provides that: a. If a referred OER is required, the senior rater will place an "X" in the appropriate box in part II, block d on the completed OER. The OER will then be given to the rated officer for signature and placement of an "X" in the appropriate box in part II, block d. b. The rated officer may comment if he or she believes that the rating and/or remarks are incorrect. The comments must be factual, concise, and limited to matters directly related to the evaluation rendered on the OER; rating officials may not rebut rated officer's referral comments. c. The rated officer's comments do not constitute an appeal. Appeals are processed separately. Likewise, the rated officer's comments do not constitute a request for a CI. Such a request must be submitted separately. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001215 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1