IN THE CASE OF: 
BOARD DATE: 22 November 2023 
DOCKET NUMBER: AR20230003192 


APPLICANT REQUESTS: 

•removal of the general officer memorandum of reprimand (GOMOR), illegibledate, with auxiliary documents from the performance folder of his Army MiliaryHuman Resource Record (AMHRR)

•removal of the DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2)Officer Evaluation Report (OER)) covering the period 11 March 2022 through13 May 2022 (hereafter referred to as he contested OER) from the performancefolder of his AMHRR



APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 

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

•DA Form 67-10-1 (draft copy)

•U.S. Army John F. Kennedy Special Warfare Center and School Memorandum(GOMOR), illegible date, with auxiliary documents



FACTS: 

1.The applicant states:

a.He was given a GOMOR and a relief-for-cause OER based on his declination toreceive the coronavirus disease 2019 (COVID-19) vaccine. The current Secretary of Defense rescinded the mandate for members of the Armed Forces to be vaccinated against COVID-19 on 10 January 2023. 

b.His final OER was only for a 2-month period and the minimum requirement perArmy regulatory guidance is 3 months (90 days). 

2.The applicant was appointed as a Reserve commissioned officer of the Army andexecuted an oath of office on 26 July 2013. He was ordered to active-duty effective2 February 2014 to attend schooling and fulfill his active duty commitment.













3.He was promoted to the rank/grade of captain/O-3 effective 1 November 2017.4.The applicant's memorandum (Request for Religious Accommodation – (Applicant)), 13 September 2021, with associated documentation, requested religious accommodation exempting him from receiving COVID-19 vaccinations. He stated his rationale as his standing as a Roman Catholic in the belief of abstaining from any medicines which are the product of immoral production in addition to the religious advice of clergy across multiple Christian faiths against the vaccine. He understood if his request were disapproved, he may continue to serve without an accommodation or he may request administrative separation. He further understood an approved accommodation continues throughout his career; it may be suspended, modified, or revoked when required by miliary necessity (see attachments).5.The DA Form 4856 (Developmental Counseling Form), 24 September 2021, indicates he was counseled by his battalion commander, Lieutenant Colonel (LTC) , regarding the directive for all service members being vaccinated against COVID-19 on 24 August 2021. On 24 September 2021, he declined to receive the vaccination. The counseling indicated the rationale and ramifications of not receiving the vaccination. He agreed with the counseling on the same date.6.The applicant did not provide and his military records do not contain a memorandum from The Surgeon General approving or disapproving an exemption for immunization accommodation request by the applicant.7.The DA Form 4856, 5 May 2022, indicates he was counseled by his battalion commander, LTC , regarding the COVID-19 vaccination policies and ramifications. He agreed with the counseling on the same date.8.Another DA Form 4856, 5 May 2022, indicates he was counseled by his battalion commander, LTC , regarding his partisan running for political office and political activities while serving on active duty. This counseling noted the policies and regulatory guidance prohibiting such activities unless approved by the Secretary of the Army. He agreed with the counseling on the same date.9.The applicant received the contested OER covering the period 11 March 2022 through 13 May 2022 (2 months) on or about 21 September 2022, which addressed his duty performance as the Commander, Headquarters and Headquarters Detachment, 6th Battalion, 2nd Special Warfare Training Group (Airborne), Fort Bragg, NC. His rater is shown as LTC , Battalion Commander, and his senior rater is shown as Colonel (COL) , Group Commander, 2nd Special Warfare Training Group (Airborne). His rater and senior rater each digitally signed the contested OER on 23 September 2022. The applicant refused to sign. The contested OER shows in:

a.Part I (Administrative), block i (Reason for Submission), the entry "Relief forCause"; 

b.Part II (Authentication), block d (This is a Referred Report, Do You Wish to MakeComments?), 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 "No" block, indicating the applicant did not wish to make comments; 

c.Part IV (Performance Evaluation – Professionalism, Competencies, andAttributes), block a (Army Physical Fitness Test (APFT) Pass/Fail/Profile), his rater entered the following comments: "No APFT due to AD [Army Directive] 2020-06. [Applicant's] physical appearance and ability are above average. He maintains a high level of physical fitness always"; 

d.Part IV, block b (This Officer's Overall Performance is Rated as), his rater ratedhis overall performance as "Unsatisfactory" and entered the following comments: "[Applicant's] performance was poor due to his lack of sound judgment and ineffective communication techniques. SM [service member] refused the COVID-19 vaccine and participated in partisan political activities while on active duty"; 

e.Part IV, block c1 (Character), his rater entered the following comments:"[Applicant] adhered to the Army Values during the rating period; however, he made some poor judgments that led to this report. [Applicant's] partisan political activities while serving on active duty in a Command position are not in line with Army policies and directives. He fully supports SHARP [Sexual Harassment/Assault Response and Prevention], EO [Equal Opportunity], and EEO [Equal Employment Opportunity]"; 

f.Part IV, block c4 (Leads), his rater entered the following comments: "[Applicant]failed to effectively communicate his plans to run for federal office while on active duty to his chain of command. As a leader, transparency throughout the chain of command is paramount. [Applicant] did not seek counsel or communicate his personal plans effectively"; 

g.Part VI (Senior Rater), block a (Potential Compared with Officers Senior Rated inSame Grade), his senior rater rated his overall potential as "Not Qualified"; and 

f.Part VI, block c (Comments on Potential), his senior rater entered the followingcomments: "Rated Soldier refuses to sign. I have directed the relief of [Applicant]. Despite otherwise satisfactory performance, [Applicant's] failure to comply with both HQDA [Headquarters, Department of the Army] EXORD [Execution Order] 225-21 FRAGO [Fragmentary Order] 5 and DoD [Department of Defense] Directive 1344.10 [Department of Defense Directive – Political Activities by Members of the Armed Forces] led to his relief. His potential for future service is limited." 




10.His group commander, COL , in a memorandum for U.S. Army Human Resources Command (Rated Officer Failed to Respond to Senior Rater's Referral Letter (Eval ID 5342340)), 24 September 2022, noted the applicant sent email communications to his rater on 21 September 2022, stating his decision to decline providing comments or signing his evaluation. Therefore, the contested OER was sent forward.11.A review of the applicant's AMHRR shows the contested OER is filed in the performance folder.12.The applicant was reprimanded in writing by Major General (MG). Commanding General, U.S. Army John F. Kennedy Special Warfare Center and School, on an illegible date, wherein he stated:





You are hereby reprimanded for disobeying a lawful order by refusing to become fully vaccinated against Coronavirus Disease 2019 (COVID-19), in violation of Article 92, Uniform Code of Military Justice (UCMJ). In response to direction by the Secretary of Defense, on 14 September 2021, the Secretary of the Army directed that Army Soldiers receive a COVID-19 vaccination. In response to this direction, you were counseled on your requirement to receive the vaccine, you were given an opportunity to view an educational video about the vaccine, and you were provided an opportunity to consult with a medical professional to discuss the vaccine and any concerns you had about being vaccinated. Subsequently, LTC , your battalion commander, lawfully ordered you to receive a COVID-19 vaccination and you unjustifiably disobeyed that order. Your actions are unacceptable, and adversely impact the health and readiness of the force. Your behavior in this matter is unacceptable. As a commissioned officer and a commander, you were charged with the responsibility of setting the example for subordinates to emulate. You failed in that responsibility and undermined your ability to lead Soldiers by refusing to follow a lawful order that impacts your individual and unit readiness, health, and safety. Your actions fell below the standards expected of a commissioned officer in the United States Army, and your continued refusal to become fully vaccinated may result in more serious actions being taken against you. Your poor judgment causes me to seriously question your fitness to continue to serve as a commissioned officer and a Soldier in this command. I trust that your future duty performance will reflect the degree of professionalism expected of every commissioned officer assigned to this command. This is an administrative reprimand imposed under the provisions of Army Regulation (AR) 600-37 [Unfavorable Information] and not as punishment under Article 15, UCMJ. You are advised that in accordance with AR 600-37, paragraph 3-5b, I am considering whether to direct this reprimand be filed permanently in your Army Military Human Resource Record (AMHRR). Prior to making my filing decision, I will consider any matters you submit in extenuation, mitigation, or rebuttal. 

You will be provided, by separate cover, a copy of the evidence which forms the basis for this reprimand You will immediately acknowledge receipt of this reprimand in writing. You will forward any matters you wish me to consider through your chain of command within seven calendar days, using the format prescribed in AR 600-37, paragraph 3-7. 

13. The applicant was again reprimanded in writing by MG , Commanding General, U.S. Army John F. Kennedy Special Warfare Center and School, on 16 May 2022, wherein he stated:

You are hereby reprimanded for running for partisan political office while serving on active duty without Secretary of the Army approval, participating in a partisan political debate, and violating a lawful order to cease and desist your unapproved candidacy for political office. On 2 May 2022, your command became aware that you were running for the U.S. House of Representatives District 9 for North Carolina and verbally issued you an order to cease-and-desist your campaign. On 5 May 2022, you were counseled by your commander on the prohibition of running for office as a member of the Army, the applicable provisions of Department of Defense Directive 1344.10, and the cease-and­ desist order was reiterated. You have failed to receive approval from the Secretary of the Army for your actions. 

As a commissioned officer, you are expected to set the example for subordinates to emulate; they trust in your leadership and guidance, and trust you to be fair, impartial, and unbiased. Likewise, the American people entrust members of the Armed Forces serving on active duty to give your full time and attention to performance of military duties and avoid any outside activities that erode confidence in the political neutrality of the military.1 

Your complete disregard for both a lawful order and regulation is unacceptable. This conduct amounts to a serious breach of your military professionalism and is contradictory to your duty to uphold the Army values of duty, honor, selfless service, and integrity. Your blatant integrity violation is further highlighted by your erroneous claim to reporters that you are no longer serving on active duty. You have put your own recognition and gain above that of others through your service-discrediting conduct. I doubt your ability to continue service in the military and strongly admonish your conduct as an officer and member of the U.S. Army. 
This is an administrative reprimand imposed under the provisions of Army Regulation (AR) 600-37 and not as punishment under Article 15, UCMJ. You are advised that in accordance with AR 600-37, paragraph 3-5b, I am considering whether to direct this reprimand be filed permanently in your Army Military Human Resource Record (AMHRR). Prior to making my filing decision, I will consider any matters you submit in extenuation, mitigation, or rebuttal. 

You will be provided, by separate cover, a copy of the evidence which forms the basis for this reprimand. You will immediately acknowledge receipt of this reprimand in writing. You will forward any matters you wish me to consider through your chain of command within seven calendar days, using the format prescribed in AR 600-37, paragraph 3-7. 
___________ 
1 As observed by the United States Supreme Court, "complete and effective civilian control [of the military] could be compromised by participation of the military qua military in the political process. There is also legitimate public concern with the preservation of the appearance of political neutrality and nonpartisanship. There must be public confidence that civilian control remains unimpaired, and that undue military influence on the political process is not even a remote risk." Greer v. Spock, 424 U.S. 828, 846 (1976). 

14.The applicant acknowledged receipt of the GOMOR on 17 May 2022.Subsequently, in a 19 May 2022 memorandum, he submitted rebuttal matters statinghis declination to be vaccinated against COVID-19 was based on a "matter ofconscience" based on his religious concerns/beliefs and not on his personal medicalcondition. He requested not placing the GOMOR in the permanent folder of his AMHRR(see attachment for further details).

15.A review of the applicant's AMHRR shows the GOMOR, illegible date, withassociated documents is not filed in his records.

16.The applicant acknowledged receipt of the GOMOR on 17 May 2022. (Note: This isthe same acknowledgement that is provided by the applicant and filed in his AMHRR).Subsequently, in a 23 May 2022 memorandum, he submitted rebuttal matters, noting hewas unaware of violating regulatory guidance on running for partisan office andparticipating in political debates. He further stated:

a.He did not violate the cease-and-desist order regarding his unapprovedcandidacy for political office. The verbal order was given to him after the primary had already begun. He tried to comply by not participating in any future political events or other activities relating to the campaign. 

b.He summarized his extenuation and mitigation by stating he submitted hisresignation before all these matters transpired with the expectation of continuing his life as a civilian. He was unaware that running for public office was in violation of military regulations. His impending discharge due to COVID-19 mandate, was the sole purpose of running for office. His campaign was in full swing and he did what he could to comply with the cease-and-desist order. 

c.He requested not placing the GOMOR in the permanent folder of his AMHRR(see attachment for further details). 





17.After carefully considering the matters submitted in rebuttal, MG directed filing the GOMOR in the applicant's AMHRR on 31 May 2022.18.A review of the applicant's AMHRR shows the GOMOR, 16 May 2022, with auxiliary documents is filed in the performance folder.19.A copy of his separation packet regarding the exact reason for discharge is not available for review; however, his AMHRR contains his DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was honorably discharged on 15 October 2022 under the provisions of Army Regulation 600-8-24 (Officers and Discharges) by reason of miscellaneous/general reasons and assigned a separation program designator code of FND (unqualified resignation). He completed 8 years, 8 months, and 14 days of net active service during this period.

BOARD DISCUSSION: 

1.After reviewing the application, all supporting documents, and the evidence foundwithin the applicant's military records, the Board found that relief was warranted. TheBoard carefully considered the applicant's record of service, documents submitted insupport of the petition and executed a comprehensive and standard review based onlaw, policy and regulation. One potential outcome was to grant partial relief to onlyremove the general officer memorandum of reprimand (GOMOR) for not taking theCOVID-19 vaccination but found the officer evaluation report to be fair and equitablebased on the applicant’s performance in regard to running a political campaign while onactive-duty and disobeying a direct order.  However, upon review of the applicant’spetition and available military records, the Board determined the applicant diddemonstrate by a preponderance of evidence that procedural error occurred that wasprejudicial to the applicant and by a preponderance of evidence that the contents of thereferred Officer Evaluation Report (OER)) and the general officer memorandum ofreprimand (GOMOR) are substantially incorrect and support removal.

2.The purpose of maintaining the Army Military Human Resource Record (AMHRR). isto protect the interests of both the U.S. Army and the Soldier.  In this regard, theAMHRR 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.  There does appear to be evidence the contested GOMOR and the DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) Officer Evaluation Report (OER)) covering the period 11 March 2022 through 13 May 2022 the was unjust or untrue or inappropriately filed in the applicant's AMHRR. 


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

:X : :X GRANT FULL RELIEF 

: :X : 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  



•general officer memorandum of reprimand (GOMOR)•DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) Officer EvaluationReport (OER)) covering the period 11 March 2022 through 13 May 2022 andplacing a statement in the record for non-rated time for this period of service




Microsoft Office Signature Line...
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. 
REFERENCES: 

1.DOD Directive 1344.10 (Political Activities by Members of the Armed Forces),applies to the Office of the Secretary of Defense, the Military Departments (including theCoast Guard at all times, including when it is a Service in the Department of HomelandSecurity by agreement with that Department).

a.Policy. It is DOD policy to encourage members of the Armed Forces (hereafterreferred to as "members") (including members on active duty, members of the Reserve Components not on active duty, members of the National Guard even when in a non-Federal status, and retired members) to carry out the obligations of citizenship. In keeping with the traditional concept that members on active duty should not engage in partisan political activity, and that members not on active duty should avoid inferences that their political activities imply or appear to imply official sponsorship, approval, or endorsement, the following policy shall apply. 

b.Paragraph 4.1.1 states a member of the Armed Forces on active duty may serveas an election official, if such service is not as a representative of a partisan political party, does not interfere with the performance of military duties, is performed when not in uniform, and the Secretary concerned has given prior approval. The Secretary concerned may not delegate the authority to grant of deny such permission. 

c.Paragraph 4.1.2 states a member of the Armed Forces on active duty shall notparticipate in partisan political fundraising activities (except as permitted in subparagraph 4.1.1.7.), rallies, conventions (including making speeches in the course thereof), management of campaigns, or debates, either on one's own behalf or on that of another, without respect to uniform or inference or appearance of official sponsorship, approval, or endorsement. Participation includes more than mere attendance as a spectator. 

2.HQDA FRAGO 5 to HQDA EXORD 225-21 COVID-19 Steady State Operations,14 September 2021, states this order addresses the 24 August 2021 Secretary of theArmy implementation of mandatory COVID-19 vaccinations of DOD service members. Itfurther states, in part, effective immediately, commanders will vaccinate all Soldiers whoare not otherwise exempt. Orders to receive the mandatory vaccine are lawful.Commanders will ensure sufficient doses of DOD-approved vaccines are on hand andavailable for their unit. Soldiers may at any time still voluntarily receive any othervaccine approved for emergency use. Soldiers requesting an exemption are notrequired to receive the vaccine pending the final decision on their exemption request.Only those adverse administrative actions identified for phase 1 are authorized duringphase 1 for Soldiers refusing the vaccine; any other adverse action based solely onvaccine refusal is withheld during this phase.

3.  Secretary of Defense memorandum (Rescission of August 24, 2021, and November 30, 2021, COVID-19 Vaccination Requirements for Members of the Armed Forces), 10 January 2023, noted in paragraphs 3 and 4: 
 
On December 23, 2022, the James M. Inhofe National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2023 was enacted. Section 525 of the NDAA for FY 2023 requires me to rescind the mandate that members of the Armed Forces be vaccinated against COVID-19, issued in my August 24, 2021, memorandum, "Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members." I hereby rescind that memorandum. I also hereby rescind my November 30, 2021, memorandum, "Coronavirus Disease 2019 Vaccination for Members of the National Guard and the Ready Reserve." 
 
No individuals currently serving in the Armed Forces shall be separated solely on the basis of their refusal to receive the COVID-19 vaccination if they sought an accommodation on religious, administrative, or medical grounds. The Military Departments will update the records of such individuals to remove any adverse actions solely associated with denials of such requests, including letters of reprimand. The Secretaries of the Military Departments will further cease any ongoing reviews of current Service member religious, administrative, or medical accommodation requests solely for exemption from the COVID-19 vaccine or appeals of denials of such requests. 
 
4.  Army Regulation 600-20 (Army Command Policy) prescribes the policies and responsibilities of command, which include the Army Ready and Resilient Campaign Plan, military discipline and conduct, the Army Military Equal Opportunity Program, the Army Harassment Prevention and Response Program, and the Army Sexual Harassment/Assault Response and Prevention Program. 
 
 a.  Paragraph 5-4 (Command Aspects of Medical Readiness and Medical Care) states the proponent for prevention against disease and injury is the Office of the Surgeon General. 
 
  (1)  Immunizations. Commanders will ensure that Soldiers are continually educated concerning the intent and rationale behind both routine and theater-specific or threat-specific military immunization requirements. Immunizations required by Army Regulation 40-562 (Immunizations and Chemoprophylaxis for the Prevention of Infectious Diseases] or other legal directive may be given involuntarily (except as prescribed in paragraph 5-6 or paragraph P-3b regarding religious accommodation). The intent of this authorization is to protect the health and overall effectiveness of the command, as well as the health and medical readiness of the individual Soldier. In cases where involuntary immunization is being considered, the following procedures and limitations apply: 
 
  (2)  Under normal circumstances, actions will not be taken to involuntarily immunize Soldiers. If a Soldier declines to be immunized the commander will: 
 
  a.  ensure that the Soldier understands the purpose of the vaccine; 
 
  b.  ensure that the Soldier has been advised of the possibility that the disease may be naturally present in a possible area of operation or may be used as a biological weapon against the United States and its allies; 
 
  c.  ensure that the Soldier is educated about the vaccine and has been able to discuss any objections with medical authorities; and 
 
  d.  counsel the Soldier, in writing, that he or she is legally required to be immunized; that if the Soldier continues to refuse to be immunized that he or she will be legally ordered to do so, and that failure to obey the order may result in UCMJ and/or administrative action for failure to obey a lawful order (Article 92, UCMJ) as deemed appropriate by the commander. 
 
 b.  Appendix P (Religious Accommodation), paragraph P-2a (Processing Requests Related To Medical Care), states a Soldier may request to have medical treatment withheld for non-emergency or nonlife-threatening illnesses and injuries. Accommodations for medical care are fact specific. Blanket requests covering unspecified future medical care will not be approved. Unit commanders may consult with medical treatment facility personnel about medical treatment options, including temporarily deferring medical treatment to accommodate a Soldier's religious practices while a request is pending. Commanders will follow Defense Health Agency or DOD policies and procedures. If Defense Health Agency or DOD procedures are not prescribed, a medical treatment facility commander will engage in the following procedures (see Memorandum of Agreement between Defense Health Agency and the Army Office of the Surgeon General and the U.S. Army Medical Command for the Direct Support to the Defense Health Agency for Medical Treatment Facility Administration and Management, 19 September 2019). 
 
 c.  Appendix P, paragraph P-2b (Immunizations). Immunization requirements for Soldiers are described in Army Regulation 40-562. Soldiers whose religious practices conflict with immunization requirements may request an exemption through command channels, from company, or immediate commander through battalion, brigade, division, and general court-martial convening authority commanders to The Surgeon General. The Surgeon General is the only approval or disapproval authority for immunization accommodation requests.  
5.  Army Regulation 623-3 (Evaluation Reporting System), effective 1 June 2016, prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. 
 
 a.  Paragraph 3-28 (Referred Evaluation Reports) states any report with negative remarks about the rated officer's Values or Leader Attributes/Skills/Actions 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 3-29 states 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. 
 
  (1)  The senior rater will refer a copy of the completed OER or academic evaluation report (AER) (an OER or AER that has been signed and dated by the rating officials) to the rated Soldier for acknowledgment and comment. 
 
  (2)  Upon receipt of the rated officer's acknowledgment (for example, receipt of a signed OER or AER, email, signed certified mail document, signed acknowledgment statement accompanying memorandum, submission of signed comments, and so forth), the senior rater will enclose it, any written comments provided by the rated officer, and the referral memorandum, with the original OER or AER for forwarding to the reviewer, if applicable. 
 
  (3)  If the senior rater (for OERs) or reviewing official (for AERs) decides the comments provide significant new facts about the rated Soldier's performance that could affect the evaluation of the rated Soldier, he or she may refer the comments to the other rating officials, as appropriate. The rating officials, in turn, may reconsider their evaluations of the rated Soldier. The senior rater or reviewing official will not pressure or influence another rating official. Any rating official who elects to raise their evaluation as a result of this action may do so. However, the evaluation may not be lowered because of the rated Soldier's comments. If the OER or AER is changed but still requires referral, the OER or AER will again be referred to the rated Soldier for acknowledgment and the opportunity to provide new comments, if desired. Only the latest acknowledgment ("YES" or "NO" on OER or AER signed by the rated Soldier) and the rated Soldier's comments, if submitted, will be forwarded to HQDA. 
 
 c.  Paragraph 3-55 states a relief-for-cause OER is required when an officer is relieved for cause, regardless of the rating period involved. It further notes the minimum time requirements for rating officials do not apply. 
 
 d.  Paragraph 4-7 states evaluation reports accepted for inclusion in the official record of an officer are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the appellant. 
 
 e.  Paragraph 4-11a-b states an evaluation report accepted for inclusion in the official record of a rated Soldier's Official Military Personnel File (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. 
 
 f.  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 Department of the Army Pamphlet 623-3 (Evaluation Reporting System)). 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. 
 
 g.  Paragraph 4-12a(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. 
 
6.  Department of the Army Pamphlet 623-3 (Evaluating Reporting System) provides procedural guidance for completing and submitting evaluation reports and associated support forms to HQDA. 
 
 a.  Paragraph 2-28 provides that:  
  (1)  If a referred OER is required, the senior rater will place an "X" in the appropriate box in Part IId of 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 IId. 
 
  (2)  The rated officer may comment if he or she believes the rating and/or remarks are incorrect. The comments must be factual, concise, and limited to matters directly related to the evaluation rendered in the OER; rating officials may not rebut rated officer's referral comments. 
 
  (3)  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 Commander's Inquiry. Such requests must be submitted separately. 
 
 b.  Paragraph 2-30 provides that an additional review of relief-for-cause OERs is required following referral to the rated officer. 
 
  (1)  When an officer (commissioned or warrant) is officially relieved of duties and a relief-for-cause OER is subsequently prepared, the OER will be referred to the rated officer or warrant officer as described in the referral process in Army Regulation 623-3. (Note: This referral must be completed before taking any of the actions in the following subparagraphs.) 
 
  (2)  Changed relief-for-cause OERs will be referred again by the senior rater (or other reviewer), in accordance with the referral process in Army Regulation 623-3, to the rated officer so the corrected OER may be acknowledged and comments can be provided, if desired. Only the final referral and acknowledgment are forwarded with the report to HQDA. 
 
7.  Army Regulation 600-37 (Unfavorable Information), sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. 
 
 a.  An administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. 
 
 b.  A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance folder. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached. Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with chapter 7 (Appeals). 
 
 c.  Paragraph 7-2 (Policies and Standards) states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 
 
 d.  Paragraph 7-3c states an officer who directed filing of an administrative memorandum of reprimand, admonition, or censure in the AMHRR may request its revision, alteration, or removal, if evidence or information indicates the basis for the adverse action was untrue or unjust, in whole or in part. An officer who directed such a filing must provide the Department of the Army Suitability Evaluation Board a copy of the new evidence or information to justify the request. 
 
8.  Army Regulation 600-8-104 (Army Military Human Resource Records Management), effective 7 May 2014, prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. The AMHRR includes, but is not limited to the OMPF, finance-related documents, and non-service related documents deemed necessary to store by the Army. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the Army Board for Correction of Military Records or other authorized agency. 
 
9.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges. Paragraph 3-5 provides that any officer on active duty (for more than 90 calendar days) may tender an unqualified resignation under this paragraph except when action is pending that could result in resignation for the good of the service; officer is under a suspension of favorable actions, pending investigation, under charges; or any other unfavorable or derogatory action is pending. Normally, resignations will not be accepted unless the officer has fulfilled the service obligation on the requested date of separation. 
 
//NOTHING FOLLOWS//